Diplomatic Protection of Natural Persons

SUBJECT Citizenship & Protection of Basic Rights I

2021/2022

CONTENTS
 1. Introduction3

2. Background3

3. Diplomatic Protection: concept and characteristics5

3.1. Who “owns” the right? 6

3.2. Relation between diplomatic protection and consular assistance7

4. Conditions for the exercise of diplomatic protection7

4.1. Nationality8

4.2. Local Remedies9

5. No representation of their country in a 3rd State 10

6. Jurisprudence10

7. Conclusion11

8. Literature12

1. INTRODUCTION

2
 With this paper, proposed and carried out within the scope of the discipline of
Citizenship & Protection of Basic Rights I, I intend to present the topic of diplomatic
protection of natural persons, considering its historical context, its characteristics and
specificities, its requirements for its effective exercise (the nationality of the individual
and the exhaustion of local remedies), and also present some case law on the subject,
namely Mavrommatis case and LaGrand case.
In a summarized manner, as Jorge Miranda says, diplomatic protection remains a
form of protection for individuals under International Law, with institutes such as
humanitarian protection, refugee protection, international protection of human rights,
and the treatment of foreigners in general coexisting alongside it 1. In addition, together
with consular protection or assistance, diplomatic protection is provided for in Article
46 of the European Union Charter of Fundamental Rights, which states that every
citizen of the Union shall, in the territory of a third country in which the Member State
of which he is a national is not represented, be entitled to protection by the diplomatic
or consular authorities of any Member State, on the same conditions as the nationals of
that State.
So, with this short description, we can be sure that the institute of diplomatic
protection is an important mechanism for safeguarding the interest and rights of
individuals. Nevertheless, diplomatic protection has been constantly developing within
international law, gaining more and more importance.
Moreover, according to article 1 of the Draft Articles on Diplomatic Protection,
which will be explained further on, the institute of diplomatic protection consists of the
invocation by a State, through diplomatic action or other means of peaceful settlement,
of the responsibility of another State for an injury caused by an internationally wrongful
act of that State to a natural or legal person that is a national of the former State with a
view to the implementation of such responsibility.

2. BACKGROUND
Diplomatic protection is not a recent theme. In fact, over the years it has been
constantly developed, so we can’t compare what we have about diplomatic protection
today with what we had in the past. “The origins of protection of nationals can be found
earlier, but even if these systems of protection applied to individuals with allegiance to
another sovereign, they were different from what is now called diplomatic protection,
and this only acquired its definite features in the 18th century” 2.
Around the 18th century, the Calvo Doctrine appeared. As Garcia-Mora says,
“when Carlos Calvo, the famous Argentine jurist, stated that in disputes between an
alien and a government, the former has to resort to local remedies waiving diplomatic
protection from his own government, he did not even suspect that he was originating
one of the most controversial clauses in the Law of Nations”3. From his doctrine arose
1
MIRANDA, Jorge. Curso de Direito Internacional Público. 6ª Ed., Principia, Cascais, 2016, p. 311-312
2
VERMEER-KÜNZLI. The protection of individuals by means of diplomatic protection: diplomatic
protection as a human rights instrument, 2007
3
GARCIA-MORA, Manuel. The Calvo Clause in Latin American Constitutions and International Law,
Marquette Law Review, 1950

3
the Calvo Clause, which, in short, consisted of prohibiting the exercise of diplomatic
protection without first exhausting all local remedies (a requirement explained later on
topic 4.2), as a way to avoid inequalities in legislation between weaker and more
powerful countries. Actually, this clause is interconnected with the principle of national
treatment, since both foreign persons and nationals of any state should be treated
equally because by granting diplomatic protection to foreigners, nationals will not get
the same advantage, which means that it would end up not being a fair consequence. In
essence, what Carlos Calvo wanted to insert into society came down to the fact that if
foreigners, in addition to holding property in Latin America, brought claims against
those States, they should turn to the courts of those States, rather than turning to their
States for diplomatic protection. However, it turns out that this clause is not of peaceful
use, but controversial.
With the end of World War II, this institute of diplomatic protection began to gain
more importance. In fact, we must go back to 1945 with the United Nations Charter and
to 1948 with the Universal Declaration of Human Rights, two milestones that were very
important in the history of International Law. Since human and fundamental rights
gained prominence, several institutes gained also more importance, including the
institute of diplomatic protection. As the United Nations states, "human rights are
rights inherent to all human beings, regardless of race, sex, nationality, ethnicity,
language, religion, or any other status"4. Precisely, diplomatic protection is even
mentioned in the Charter of Fundamental Rights of the European Union through article
46 which states that every citizen of the Union shall, in the territory of a third country in
which the Member State of which he or she is a national is not represented, be entitled
to protection by the diplomatic or consular authorities of any Member State, on the
same conditions as the nationals of that Member State.
In 1996 diplomatic protection was discussed again by the General Assembly of
United Nations, "whose object is the promotion of the progressive development of
international law and its codification"5. So, consequently, later in 2006 one of the major
milestones in the history of diplomatic protection was created. The so-called Draft
Articles on Diplomatic Protection were established through the International Law
Commission at its 58th Session. In other words, a set of draft articles on diplomatic
protection were adopted by the then Special Rapporteur John Dugard. It was here that
diplomatic protection was defined, according to article 1 relating to the definition and
scope, as the invocation by a State, through diplomatic action or other means of
peaceful settlement, of the responsibility of another State for an injury caused by an
internationally wrongful act of that State to a natural or legal person that is a national of
the former State with a view to the implementation of such responsibility. “The
commission's work on diplomatic protection is usually considered to correspond to
international custom, and the commentaries are quite clear on which articles are
understood to be de lege ferenda”6. However, even though these articles influence the
way of acting towards diplomatic protection, the truth is that “it has not been agreed
that they should be submitted to a Conference with a view to formalizing them in a
treaty”7.
4
https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx
5
International Law Commission (un.org)
6
LIMA, Lucas Carlos. Diplomatic protection in contemporary international law: what is the role of
nationality?. Revista da Faculdade de Direito da Universidade Federal de Uberlândia, 2019. Pp 85
7
DENZA, Eileen. Nationality and Diplomatic Protection, 2018, London. Pp 478

4
3. DIPLOMATIC PROTECTION: CONCEPT AND CHARACTERISTICS
First, in the words of John Dugard, "diplomatic protection is a procedure by which
a State protects the person or property of one of its nationals abroad"8. It is treated as
an important theme of International Law with a customary nature and is now seen in
many countries as a fundamental right. In fact, it appears in several Constitutions as a
right or duty that a State has to protect its citizens in a foreign country. In other words,
the institute of diplomatic protection concerns a set of measures implemented by States
to safeguard the protection of their citizens, who have suffered harm, in a third country.
Therefore, it is an indirect mechanism for the protection of rights following an
internationally wrongful act or a kind of conflict resolution between two States.
Basically, it consists of "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"9.
In turn, such diplomatic protection is granted to natural persons (and legal persons),
as the name of this paper indicates. In law, "a natural person is legally defined as a
living human being. This definition is meant to set a natural person apart from a legal
person, which is a group of people acting in a unified, often commercial enterprise but
are considered by law to be acting as a single fictional or virtual individual"10. In other
words, a natural person will be the very human being endowed with the capacity to be
the subject of rights and obligations. So, this means that all human beings, in principle,
will be beneficiaries of the European Union's fundamental rights.
So, “diplomatic protection is the procedure by which a state acts extraterritorially
in order to assert its legal interest. As a substantive right, it allows states to demand
that international law be observed in the person of its nationals” 11.
Additionally, as Borchard points out, States have a choice in how they exercise
diplomatic protection. To this end, they have mechanisms available to them, namely
“the use of good offices, mediation, arbitration, suspension of diplomatic relations, a
display of force, retorsion, reprisals, or armed intervention, to full war in the full sense
of the word”12. However, as John Dugard mentions in view of the 2006 articles on
diplomatic protection, the International Law Commission follows the direction that
States should not resort to the use of force, even for self-defense reasons, to defend the
interests of their nationals.
This discretionary exercise means that it’s up to the States to decide if they will act
in diplomatic protection to guarantee the individual rights of their nationals, and this can
lead to the idea that States may act only when there are political interests, for example.

8
DUGARD, John. Lecture about Diplomatic Protection, 2008
(https://legal.un.org/avl/ls/Dugard_DP.html#)
9
https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-
0020.xml
10
https://www.mylawquestions.com/in-law-what-is-a-natural-person.htm
11
LEYS, David. Diplomatic Protection and Individual Rights: a complementary approach, Volume 57,
2016. Pp. 4
12
BORCHARD. The Diplomatic Protection of Citizens Abroad, New York 1919 (reprint 2003). Pp 439

5
3.1. WHO “OWNS” THE RIGHT?
Moreover, this discretionary power described before raises the question of whether
diplomatic protection is a right of the state or a right of the individual.
As mentioned earlier, diplomatic protection and fundamental human rights have a
relationship with each other. Nevertheless, this approximation of fundamental rights
with diplomatic protection is not pacific today, as there are several opinions on whether
the two concepts should be considered separately, that is, whether diplomatic protection
is a human right or a right of the State itself. Actually, some say "diplomatic protection
remains a mechanism of international law that is still employed by States to secure just
treatment for their nationals abroad"13, which means that it is a right of the State. In
addition, in 1924, with the Mavrommatis Case14, the Permanent Court of International
Justice held that it is a right of the State and in article 2 of the 2006 Draft Articles on
Diplomatic Protection it says that a State has the right to exercise diplomatic protection.
On the other hand, some argue that one of the biggest shortcomings of the right to
diplomatic protection as a means of upholding human rights is that it is left up to the
respective States of the nationality of the person concerned to decide whether to actually
apply for diplomatic protection, which means that the right will belong to the States and
not to the persons. In fact, “among the legal fictions that make up the international
legal system, the diplomatic protection regime is perhaps the one that, historically, has
best served the logic of imperialism”15, due to the fact that we can think that the
affirmation of a state’s right will restrict the rights of individuals on an international
level.
However, regardless of whether the right belongs to the individuals or belongs to
the States of the nationality of the respective injured parties, it is not arguable that “most
importantly, the growing importance of the individual as an actor in international law
and the development of other mechanisms for the protection of their rights are to be
taken into account in any assessment of the current status of diplomatic protection”16, so
with the development of human rights it causes doubts about diplomatic protection
being a right of the State, given the fact that nowadays the individual becomes the
subject of several rules of International Law. So, it is important to note that, in a way,
diplomatic protection functions as a kind of consequence of the international protection
of human rights, in the sense that foreigners in the territory of a State other than that of
their nationality should be granted treatment considered internationally appropriate and
fair.

13
DUGARD, John. Articles on Diplomatic Protection, United Nations Audiovisual Library of
International Law, 2013. Pp 2
14
The Mavromamatis Palestine Concessions (Greece v. Britain). PCIJ: Judgement No. 2, 30 August 1924
(http://www.worldcourts.com/pcij/eng/decisions/1924.08.30_mavrommatis.htm)
15
LIMA, Lucas Carlos. Diplomatic protection in contemporary international law: what is the role of
nationality?. Revista da Faculdade de Direito da Universidade Federal de Uberlândia, 2019. Pp 96
16
VERMEER-KÜNZLI. The protection of individuals by means of diplomatic protection: diplomatic
protection as a human rights instrument, 2007. Pp 13

6
3.2. RELATION WITH DIPLOMATIC PROTECTION AND CONSULAR
ASSISTANCE
At the international level, diplomatic protection can be confused with another very
similar institute, namely consular assistance or consular protection. However, it is true
that both institutes have the objective of protecting citizens, but they are often not
distinguished.
In short, the consular assistance has his general guidelines present in the 1963
Vienna Convention on Consular Relations. According to the European Council and
Council of the European Union, “consular protection refers to help provided by a
country to its citizens who are living or traveling abroad and are in need of assistance,
such as in cases of arrest or detention, serious accident, serious illness or death,
natural disaster or political unrest and loss of passport or travel documents”17.
However, as mentioned, although diplomatic protection and consular assistance
have aspects in common, the truth is that they are different institutes, and it is necessary
to differentiate them. As Aneemarieke Kunzli18 points out, we can distinguish between
the institutes in three fundamental respects, namely in relation to the limits imposed by
the VCCR (Vienna Convention on Consular Relations) on consular activities as
opposed to diplomatic protection, in relation to the level of representation of each and,
finally, in relation to the nature of consular assistance (preventive) versus the nature of
diplomatic protection (remedial).
In fact, one of the most relevant differences between the two institutes is precisely
the nature of each one. While consular assistance “has a preventive nature and takes
place before local remedies have been exhausted or before a violation of international
law has occurred”19, diplomatic protection contains the requirement that all local
remedies must be exhausted for such protection to be effectively exercised with respect
to the injured individual (topic explained further below). So, in other words, while
diplomatic protection acts to remedy the effects/damages caused by internationally
wrongful acts against nationals, consular assistance functions as a kind of prevention
and defense of the rights of nationals.

4. CONDITIONS FOR THE EXERCISE OF DIPLOMATIC PROTECTION

As said before, it is true that diplomatic protection is a right. However, for it to
become effective, that is, for diplomatic protection to be exercised in a given case, two
conditions must be met: the nationality requirement and the requirement that
local/internal remedies/resources be exhausted.

4.1. NATIONALITY

17
https://www.consilium.europa.eu/en/policies/consular-protection/
18
KUNZLI, Annemarieke. Exercising Diplomatic Protection: The fine line between litigation, demarches
and consular assistance, 2006
19
KUNZLI, Annemarieke. Exercising Diplomatic Protection: The fine line between litigation, demarches
and consular assistance, 2006. Pp 336

7
 With regard to the first requirement, first of all, "nationality defines the legal
relationship or 'legal bond' between the citizen/national and her state, based on social
facts of attachment, and which gives rise to rights and duties on the part of both sides of
that relationship"20. If we take into account the Draft Articles on Diplomatic Protection,
more specifically article 4, we can see that for the diplomatic protection of natural
persons, the State of the nationality of a natural person refers to the State whose
nationality that person acquired through birth (ius soli), through descent (ius sanguinis)
or through naturalization and State succession. To this end and following the logic of
Article 5 of the Draft Articles, a State is entitled to exercise diplomatic protection to a
person who was its national, continuously, from the date of the damage until the time of
filing of the suit. On the other hand, there is no longer a right to diplomatic protection
when a person acquires the nationality of the State against which the action is brought
after the date of filing of the action. But we can still have the hypothesis of diplomatic
protection by a State for a person who is national at the time of filing the suit but was
not national at the time of the damage. In this situation, it is required that the person had
the nationality of a predecessor state, or that he or she lost his or her nationality, or that
he or she acquired the nationality of the previous state in a manner not contrary to
international law.
Additionally, in this context of nationality, it is important to mention certain
situations, namely what happens in cases of multiple nationalities, in the case of
stateless persons, or in the case of refugees, because “certain individuals can be
protected by States internationally regardless of nationality ties”21.
In the case of multiple nationalities, we must observe two types of situations,
referring respectively to Article 6 and Article 7 of the Draft Articles. So, first of all, if
there are multiple nationalities and the claim is against a third State, either or both States
together can initiate diplomatic protection, which means that the right to diplomatic
protection for multiple nationalities is guaranteed in these terms. However, this is not
the same in the case of multiple nationalities and the claim is against the State of which
the injured party is a national. In fact, as John Dugard says about the articles on
diplomatic protection, there was divergence in the application of this institute to persons
who were also nationals of the defendant State. Therefore, in those cases, a State cannot
exercise diplomatic protection against the State of which that person is a national unless
the nationality of the former State is predominant.
On the other hand, one of the developments that have been seen lately concerns
stateless persons or refugees. In those situations, we have to take into account Article 8
of the Draft Articles.
So, firstly, in this sense, we recognize that stateless persons are people who have no
nationality in relation to stateless persons. Thus, a State may exercise diplomatic
protection with respect to a stateless person as long as he or she is a legal and habitual
resident of that State at the time of the injury and at the time the action is brought
(article 8 paragraph 1).

20
EDWARDS, Alice. The meaning of nationality in international law in an era of human rights, 2014,
Cambridge University Press. Pp 11
21
LIMA, Lucas Carlos. Diplomatic protection in contemporary international law: what is the role of
nationality?. Revista da Faculdade de Direito da Universidade Federal de Uberlândia, 2019. Pp 92

8
 On the other hand, refugees "are people who have fled war, violence, conflict or
persecution and have crossed an international border to find safety in another
country"22. In this context and according to article 8 paragraphs 2 and 3 of the Draft
Articles, a State may exercise diplomatic protection with respect to a refugee, taking
into account international standards and provided that the person is a legal and habitual
resident of that State at the time of the damage and the filing of the suit. However, this
protection is no longer available when damage is caused by an internationally wrongful
act committed by the refugee's State of nationality.

4.2. LOCAL REMEDIES

As far as the second condition is concerned, for diplomatic protection to be truly
effective, it is necessary, in addition to taking into account the nationality of the person
in question, to exhaust all local remedies available to the individual.
Therefore, diplomatic protection is effective for any natural person, whether
nationals or stateless persons and refugees, when the injured person has not exhausted
all domestic remedies. In fact, according to article 14 of the Draft Articles “local
remedies” are the legal actions that be brought by the person who suffered the damage
before the courts or administrative judicial bodies, ordinary or special, of the state
allegedly responsible for the damage.
But we also find certain exceptions to the rule of exhaustion of local remedies,
namely in Article 15 of the Draft Articles on diplomatic protection. In fact, it is
unnecessary to have such exhaustion to grant diplomatic protection when there are no
domestic remedies reasonably available for an effective remedy (paragraph a).
Moreover, exhaustion of remedies is also not required when there has been undue delay
by the State allegedly responsible for the damage when there is no causal link between
the injured party and the State allegedly responsible for the damage (paragraph b), when
the injured party is manifestly prevented from using local remedies (paragraph d) or
when the State allegedly responsible for the damage has waived the requirement to
exhaust local remedies (paragraph e). Despite these exceptions, as John Dugard states,
there was “some debate over the question whether local remedies were to be exhausted
when there was no relevant connection between the injured person and the State
responsible for the injury”23. For that reason, we find in article 15 paragraph c) that
exception due to the occurrence of certain events in the past such as the radioactive
fallout from Chernobyl.

5. NO REPRESENTATION OF THEIR COUNTRY IN A THIRD STATE

22
https://www.unhcr.org/what-is-a-refugee.html
23
DURGARD, John. Articles on Diplomatic Protection, United Nations Audiovisual Library of
International Law, 2013

9
 It may happen that in a certain situation the natural person does not have
representation of his or her State of nationality in a third State.
Therefore, the TFEU tries to solve this problem through article 20(c)(2) that says
that “citizens of the Union shall enjoy the rights and be subject to the duties provided
for in the Treaties. They shall have, inter alia: the right to enjoy, in the territory of a
third country in which the Member State of which they are nationals is not represented,
the protection of the diplomatic and consular authorities of any Member State on the
same conditions as the nationals of that State”. This means that any person who is a
citizen of the European Union in a non-member State is entitled to diplomatic protection
when his country has no representation in that third State. And this protection is given
by any Member State of the European Union on the same conditions as the nationals of
the State.

6. JURISPRUDENCE
The topic of diplomatic protection can be observed in several international
decisions. In fact, more and more nowadays that has been the case, due to the increase
in international economic relations, with the consequent expansion of markets
throughout the 20th century.
In 1924, the first jurisprudential reference on diplomatic protection was noted with
the Mavrommatis case 24. In short, what happened was that "Greece claimed that the
Government of Palestine had ignored some contractual rights that belonged to
Mavrommatis, and the Permanent Court of International Justice eventually recognized
the legitimacy of the right of States to diplomatic protection for their nationals when
they have been injured by acts contrary to international law committed by another State.
In essence, what was established here was that damage caused to an individual by a
violation of a rule of international law is the same as damage to the very state of which
the person is a national.
More recently, the LaGrand25 case deals with diplomatic protection and consular
assistance issues. “Germany and Mexico respectively filed a case against the United
States for violation of the Vienna Convention on Consular Relations (VCCR) in their
own right and in their right to diplomatic protection, as their nationals had individually
suffered from the non-compliance with this Convention”26. The State of Arizona (United
States of America), in 1999, detained two people and tried and sentenced them to death
without having been informed of their rights, which is required by the Vienna
Convention. With this lack of information, Germany was not notified of such a situation
and for that reason, the State would be unable to protect the interests of its citizens.
24
The Mavromamatis Palestine Concessions (Greece v. Britain). PCIJ: Judgement No. 2, 30 August 1924
(http://www.worldcourts.com/pcij/eng/decisions/1924.08.30_mavrommatis.htm)
25
LaGrand Case (Germany v. United States of America). ICJ: judgement of 27 June 2001
(https://www.icj-cij.org/public/files/case-related/104/104-20010627-JUD-01-00-EN.pdf)
The Mavromamatis Palestine Concessions (Greece v. Britain). PCIJ: Judgement No. 2, 30 August 1924
(https://www.icj-cij.org/public/files/case-related/104/104-20010627-JUD-01-00-EN.pdf)
26
KUNZLI, Annemarieke. Exercising Diplomatic Protection: The fine line between litigation, demarches
and consular assistance, 2006. Pp 337

10
Therefore, Germany brought an action against the United States based on diplomatic
protection. However, the United States argued that these claims would concern consular
assistance and not diplomatic protection. They also argued that the individuals
concerned had not exhausted all local remedies (a requirement for the exercise of
diplomatic protection). In fact, both German nationals were executed by the United
States. It turned out that the International Court of Justice rejected the objections of the
United States and eventually recognized the right to exercise diplomatic protection,
accepting Germany's claim.

7. CONCLUSION
In doing this work I came to the conclusion that diplomatic protection remains
current, relevant and is quite important in the context of International Law.
Over the years this thematic has been undergoing some changes. But what we can
be sure of is that diplomatic protection is a procedure where the State has to protect its
citizens in a foreign country, that is, it is a set of measures implemented by States to
safeguard the protection of their citizens, who have suffered harm, in a third country.
In addition, we observe several judgments related to the topic of diplomatic
protection as time passes and related to the requirements that are needed for their
effective application, which can often be misleading and create legal problems in certain
specific cases.
But in fact, regardless of whether it is a right of the State or a right of the
individual, it is certain that it is of such importance in terms of fundamental human
rights, because with this institute the interests and right of citizens of a certain State are
guaranteed.

11
8. LITERATURE AND WEBGRAPHY

● BORCHARD. The Diplomatic Protection of Citizens Abroad, New York 1919

(reprint 2003)
● DENZA, Eileen. Nationality and Diplomatic Protection, 2018, London.
● DUGARD, John. Articles on Diplomatic Protection, United Nations Audiovisual
Library of International Law, 2013
● DUGARD, John. Lecture about Diplomatic Protection, 2008
(https://legal.un.org/avl/ls/Dugard_DP.html#)
● EDWARDS, Alice. The meaning of nationality in international law in an era of
human rights, 2014, Cambridge University Press
● GARCIA-MORA, Manuel. The Calvo Clause in Latin American Constitutions
and International Law, Marquette Law Review, 1950
● KUNZLI, Annemarieke. Exercising Diplomatic Protection: The fine line
between litigation, demarches and consular assistance, 2006
● LEYS, David. Diplomatic Protection and Individual Rights: a complementary
approach, Volume 57, 2016
● LIMA, Lucas Carlos. Diplomatic protection in contemporary international law:
what is the role of nationality?. Revista da Faculdade de Direito da Universidade
Federal de Uberlândia, 2019.
● MIRANDA, Jorge. Curso de Direito Internacional Público. 6ª Ed., Principia,
Cascais, 2016
● The LaGrand Case (Germany v. United States of America). ICJ: judgement of
27 June 2001 (https://www.icj-cij.org/public/files/case-related/104/104-
20010627-JUD-01-00-EN.pdf)
● The Mavromamatis Palestine Concessions (Greece v. Britain). PCIJ: Judgement
No. 2, 30 August 1924
(https://www.icj-cij.org/public/files/case-related/104/104-20010627-JUD-01-00-
EN.pdf)
● VERMEER-KÜNZLI. The protection of individuals by means of diplomatic
protection: diplomatic protection as a human rights instrument, 2007

● https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx
● https://www.unhcr.org/what-is-a-refugee.html
● https://www.consilium.europa.eu/en/policies/consular-protection/
● https://legal.un.org/ilc/

12