1 In order to bring a claim for diplomatic protection a State must establish that the person on whose behalf it brings the claim is a national of that State. This is known as the rule of the nationality of the claim. The rule of continuous nationality is a sub-rule of this rule and requires that a State may only exercise diplomatic protection on behalf of a person, natural or legal, who was a national at both the time of the injury in respect of which the claim is brought and at the time of the presentation of the claim or, possibly, the date of the judgment on the claim. The rule is a consequence of the principle that a State may exercise diplomatic protection only on behalf of a national.
2 The requirement of continuous nationality is difficult to reconcile with the traditional view that a State exercises diplomatic protection in its own right because an injury to a national is deemed to be an injury to the State itself (see also Mavrommatis Concessions Cases). Logically, if this were indeed the case, nationality at the time of injury alone would suffice. For this reason the rule has been seriously criticized. It has also been subjected to criticism on the ground that it may cause great injustice where the injured individual has undergone a bona fide change of nationality, unrelated to the bringing of an international claim (Good Faith [Bona fide]; Claims, International), after the occurrence of the injury, as a result of voluntary or involuntary naturalization, eg by marriage, cession of territory, or succession of States (see also State Succession in Other Matters than Treaties).
3 The rule is primarily justified on the ground that it prevents an individual from changing his nationality in order to find a national State that will most effectively pursue the claim arising out of an injury that he has suffered at the hands of a foreign State. In
Administrative Decision No V of 1924 Umpire Parker stated that:
4 Opinion, both academic and judicial, is divided as to whether the rule has sufficient support in State practice to qualify as a rule of customary international law. In 1932, the Institute of International Law (Institut de Droit international) refused, by a small majority, to approve the rule ([1932] 37 AnnIDI 278), but in 1965 it reaffirmed the rule by stressing that a claim must possess the national character of the claimant State both at the date of its presentation and at the date of injury ([1965] 51(2) AnnIDI 260–62). There are two principal objections to recognizing the requirement of continuous nationality as a rule of customary international law. First, in many cases in which tribunals have been required to pronounce on the requirement they have been bound by the language of a treaty and their decision has involved a question of treaty interpretation rather than the application of a customary rule. Secondly, there is uncertainty about the content and scope of the rule. While it is generally accepted that the injured person must possess the nationality of the claimant State at the date of the injury, opinion is divided over other aspects of the rule, namely on the need for continuity of nationality between the date of the injury and the date until which continuity of the claim is required, and on the timing of this final date itself.
5 In 2006 the International Law Commission (ILC) gave its approval to the rule of continuous nationality when it adopted the Draft Articles on Diplomatic Protection (Report of the International Law Commission on the Work of its 58th Session). The draft articles on this subject, which deal with the continuous nationality requirement in respect of both natural and legal persons, cover the content of the rule and exceptions to the rule. These draft articles are not merely an exercise in codification as they progressively develop aspects of the rule that were hitherto uncertain (Codification and Progressive Development of International Law).
6 The first requirement of the rule of continuous nationality is not seriously disputed and clearly has the character of a customary rule as it is supported by State practice. According to this requirement, the injured national must be a national of the claimant State at the date of the injury, known as the dies a quo. The date of the injury need not be a precise date but could extend over a period of time if the injury consists of several acts or a continuing act committed over a period of time.
7 There is little State practice on the question whether the injured person must retain the nationality of the claimant State between the date of injury and the date of the presentation of the claim or the rendering of the judgment, known as the dies ad quem. For this reason the Institute of International Law in 1965 left open the question whether continuity of nationality was required between the two dates (see para. 4 above). It is, however, incongruous to require that the same nationality be shown at both the date of the injury and the date of the official presentation of the claim or date of the judgment without requiring it to continue between these two dates. For this reason the ILC has proposed, in an exercise in progressive development, that the injured national be a national continuously from the dies a quo to the dies ad quem. It is to be presumed that nationality existed continuously between both these dates, but such a presumption may be rebutted (Art. 5 (1) Draft Articles on Diplomatic Protection).
8 There is disagreement over the date until which continuous nationality is required. Some treaties, judicial decisions, and academic writings identify the
dies ad quem as the date of the presentation of the claim while others support the date of the making of the award or the rendering of the judgment. In 2003 approval was given to the latter date in
Loewen Group Inc v USA in which an
International Centre for Settlement of Investment Disputes (ICSID) arbitral tribunal held that: The disagreement over the
dies ad quem stems largely from the fact that conventions establishing
mixed claims commissions have employed different language to identify the date of the claim. As the phrase ‘presentation of the claim’ is that most frequently used in treaties, judicial decisions and doctrine to indicate the outer date or
dies ad quem required for the exercise of diplomatic protection, the ILC in its 2006 draft articles opted for this date (Art. 5 (1) Draft Articles on Diplomatic Protection). This date is significant as it is the date on which the State of nationality shows its clear intention to exercise diplomatic protection. Moreover, it is the date on which the admissibility of the claim must be judged.
9 If a person in respect of whom a claim is brought becomes a national of the respondent State after the presentation of the claim, the applicant State loses its right to proceed with the claim as in such a case the respondent State would in effect be required to pay compensation to its own national. This was the situation in Loewen Group Inc v USA and a number of other cases in which a change in nationality after presentation of the claim was held to preclude its continuation. This is recognized in Art. 5(4) ILC Draft Articles on Diplomatic Protection.
10 There is uncertainty as to whether the heirs of an injured national, who dies as a consequence of the injury or thereafter, but before the official presentation of the claim, may be protected by the State of nationality of the injured person if he or she has the nationality of another State. Judicial decisions on this subject, while inconclusive as most deal with the interpretation of particular treaties, tend to support the position that no claim may be brought by the State of nationality of the deceased person if the heir has the nationality of a third State. Where the heir has the nationality of the respondent State it is clear that no such claim may be brought.
11 As pointed out above (see para. 2), the rule of continuous nationality may cause great hardship in individual cases where the injured person has lost his or her nationality for a reason unrelated to the bringing of the claim. Loss of nationality may occur involuntarily in the case of cession of territory or succession of States or, possibly, in the case of adoption or marriage when a change of nationality is compulsory. In other cases, such as marriage, it will sometimes not be clear whether the change of nationality is voluntary or not. In order to provide for hardship cases of this kind the ILC has proposed in its 2006 draft articles, in an exercise in progressive development of the law, that:
12 The draft articles of the ILC extend the application of the rule of continuous nationality to corporations (see also Corporations in International Law). The rule is, however, confronted with a difficult problem in respect of the diplomatic protection of a corporation that has ceased to exist (as a result of an injury) according to the law of the State in which it was incorporated and of which it was a national. A strict application of the continuity rule would render such a corporation ineligible for protection as it would not have the nationality of the State at the date of the presentation of the claim. Nor could the State of nationality of the shareholders exercise protection because such a State could not show that it had the necessary interest at the time the injury occurred to the corporation. This matter troubled several judges in the Barcelona Traction Case (Case concerning the Barcelona Traction, Light and Power Co Ltd [New Application: 1962] [Belgium v Spain]; Separate Opinion of Judge Jessup 193; Separate Opinion of Judge Gros 277; Separate Opinion of Judge Sir Gerald Fitzmaurice 101–2; Dissenting Opinion of Judge Riphagen 345).
14 The role of diplomatic protection has ‘somewhat faded’ today in respect of corporations as the protection of corporations and the rights of their shareholders, and the settlement of associated disputes, are largely governed by bilateral and multilateral agreements designed to protect foreign investments Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) (Judgment) (May 2007) para. 88; Ahmadou Sadio Diallo Case [Republic of Guinea v Democratic Republic of the Congo]). Such treaties abandon or relax the rules relating to the nationality of claims and the exhaustion of local remedies (Investment Disputes; Investments, International Protection; Local Remedies, Exhaustion of). The central treaty is the International Convention for the Settlement of International Disputes which by necessary implication dispenses with the rule of continuous nationality as it provides that the relevant date for the determination of nationality is that on which the parties consented to submit the dispute to conciliation or arbitration. Some decisions, notably Loewen Group Inc v USA have found the rule of continuous nationality to be applicable to investment treaties, but the better view is that the rule is inapplicable to investment treaties as the whole purpose of such treaties is to replace the regime of diplomatic protection with one more friendly to investors and less governed by conditions for the bringing of claims.
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