Diplomatic Protection

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...

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.