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Part II Historical and Legal Sources, Ch.10 Diplomatic Protection as a Source of Human Rights Law

Annemarieke Vermeer-Künzli

From: The Oxford Handbook of International Human Rights Law

Edited By: Dinah Shelton

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 28 November 2020

Subject(s):
Diplomatic protection — Nationalilty of individuals — Development, right to — Nationality of individuals — Sovereignty

(p. 250) Chapter 10  Diplomatic Protection as a Source of Human Rights Law

1. Introduction

Diplomatic protection, or the protection of nationals abroad, has been a traditional feature of international law. It has influenced many other areas of international law, such as the law of state responsibility, investment law, and human rights law. This chapter explores the extent to which the law of diplomatic protection and its development have influenced the formation of human rights law. After a general introduction, the discussion examines the legal rules concerning diplomatic protection, which are designed to respect the sovereignty of the receiving state—that is, the state where the (alleged) injury to an alien occurred. Although modern human rights law has not adopted the rule on nationality of claims, the requirement of exhausting local remedies is part of human rights law, based on similar underlying considerations. The third part will consider the international minimum standard and its relevance for the formation of modern human rights law.(p. 251)

In the eighteenth century, the Swiss scholar Emmerich de Vattel wrote:

Quiconque maltraite un Citoyen offense indirectement l’Etat, qui doit protéger ce Citoyen. Le Souverain de celui-ci doit venger son injure, obliger, s’il le peut, l’aggresseur à une entière réparation, ou le punir; puisqu’autrement le Citoyen n’obtiendroit point la grande fin de l’association Civile, que est la sûreté.1

Although this certainly is not the first reference to the rights of individuals or human rights, it is commonly considered the first doctrinal source on what became ‘diplomatic protection’. Other important early sources include a wealth of case law that the various mixed claims commissions of the nineteenth and early twentieth centuries produced, as well as the works of scholars such as Borchard, Dunn, and Freeman, and the case law of the Permanent Court of International Justice (PCIJ) and its successor, the International Court of Justice (ICJ). Today’s approach to diplomatic protection, as can be found in the Draft Articles on Diplomatic Protection adopted by the UN International Law Commission (ILC) in 2006,2 largely reflects the notion as Vattel expressed it. Diplomatic protection still allows an injured individual’s state of nationality to present a claim against the state responsible, based on indirect injury, with a view to obtain reparation—in the words of the ILC, the ‘implementation of such responsibility’.3 This is not to say that no important developments have taken place in the law of diplomatic protection, quite to the contrary, but these changes affect the conditions for the exercise of diplomatic protection and the allocation of the rights protected, not the notion that a state may protect its injured nationals as such.4 In addition, they primarily occurred after the emergence of human rights law and thus have limited relevance for the present study.

Prior to the emergence of specific human rights instruments in international law, and institutions such as the European and Inter-American Courts on Human Rights and the UN treaty monitoring bodies, diplomatic protection was the most important or even the only means by which claims could be made and reparation could be (p. 252) sought for injuries to individuals. Diplomatic protection was used to address claims arising from individual injury, resulting both from situations of revolution, war, and armed conflict, for which specific claims tribunals were often created, and for injuries arising in peacetime, which diplomatic negotiation or arbitration dealt with.5 In this sense, diplomatic protection was an instrument for the protection of human rights avant la lettre, because the rights that diplomatic protection protected were not always classified as human rights, and because individuals were not considered holders of rights. Nevertheless, diplomatic protection proved an effective means to protect individuals against abuses at the hands of states. While this chapter will discuss the influence of diplomatic protection on human rights law, the opposite has also occurred. The ILC Draft Articles on Diplomatic Protection stress, for example, that the acquisition of nationality may not be contrary to international law, with reference to the Convention on the Elimination of All Forms of Discrimination against Women’s prohibition of the automatic change of nationality upon marriage.6 In addition, the explanatory commentary on the exceptions to the local remedies rule frequently refers to decisions of human rights courts to support the (customary) status of the exceptions.7 The jurisprudence and case law of the various human rights bodies has undoubtedly greatly influenced the form of these exceptions and their customary status.

The influence of diplomatic protection on human rights law will be analysed from two perspectives: a formal one and a material one. This chapter first examines how the territorial and nationality-related rules on diplomatic protection have contributed to the development of human rights law. Second, it demonstrates how the basis for diplomatic protection claims ratione materiae has long been the ‘international minimum standard’, which in turn has informed many civil and political rights. The formal perspective may appear to have been less important in the development of human rights law than the material one, but the analysis will show two influences; on the one hand, the requirement to exhaust local remedies, a means to preserve the sovereignty of states, has been included in those human rights instruments which provide for individual claims. On the other hand, restricting diplomatic protection to nationals of the claimant state has successfully been eliminated in modern (p. 253) human rights law. These two issues may be qualified as a positive and a negative influence, respectively.

2. The Territorial and Nationality Dimension of Diplomatic Protection

In 1919, Edwin Borchard, wrote:

[W]‌hatever rights the individual has in a state not his own are derived from international law, and are due him by virtue of his nationality. As a matter of fact, the alien derives most of his rights—fundamental or human rights and others—by grant from the territorial legislature, international law fixing a minimum which cannot be overstepped and authorizing certain agencies, usually the national state, to remedy and punish a breach.8

The starting point for the enjoyment of rights is thus nationality, but the relevant territorial sovereign determines the contents of these rights, while being enjoined to respect the international minimum standard. These three elements—nationality, locus, and the international minimum standard—largely determined whether a claim based on diplomatic protection was admissible and, if so, the scope of the claim on the merits. Reference to the state of nationality of the individual concerned, of course, primarily settles the issue of nationality, since that state determines who its nationals are.9 Borchard suggested that, to the contrary, the receiving state, taking the international minimum standard into account, primarily determines the rights an individual may claim (the merits).

To some extent, the construct presented is no longer the case, because the international minimum standard is no longer the only source for international human rights. Yet even today, the application of rules still depends on consent, or in Borchard’s words, the ‘grant from the territorial legislature’.10 The limitations thus created considerably influenced the scope of diplomatic protection, and by extension, the protection of individual rights in general. Before the rise of universal human rights, this meant that states’ application of the international minimum standard was limited to foreigners within their territory or jurisdiction. In addition, as will (p. 254) be discussed in Section 3, the rights that could be claimed also largely depended on the regime applicable in the receiving state, the minimum standard being somewhat of a residual standard. The ILC Draft Articles on Diplomatic Protection also reflect the limitation ratione personae, both with respect to the protected individual and with respect to the state against which the claim is presented, even if the rights that can be claimed are no longer limited to the international minimum standard. As is stipulated in Article 1, states may present an international claim based on injury inflicted on their nationals against another state (allegedly) responsible for this injury.11 The link between nationality and rights has long been a defining feature of diplomatic protection and stands in stark contrast to the modern approach to human rights. The law on diplomatic protection had (and still has) very little to say about the treatment of nationals in their state of nationality or about general situations of abuse that do not involve nationals of a potential claimant state.12 The relevance of nationality will be discussed first, followed by a brief section on territory and rights in the context of diplomatic protection.

2.1  The bond of nationality

In the exercise of diplomatic protection, states are allowed to protect their nationals only.13 This is the nationality of claims rule, which is derived from the bond of nationality. This bond, or link, between an individual and his or her state of nationality, is the basis for protection by the latter in favour of the former. In the Panevezys-Saldutiskis Railway case, the PCIJ expressed this principle as follows:

it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged. Where the injury was done to the national of some other State, no claim to which such injury may give rise falls (p. 255) within the scope of the diplomatic protection which a State is entitled to afford nor can it give rise to a claim which that State is entitled to espouse.14

The nationality of claims rule constitutes an important limit to the range of situations susceptible to diplomatic protection, because the bond of nationality is a conditio sine qua non for the exercise of diplomatic protection. First and foremost, this is a procedural requirement; the nationality of the injured individual must be of the protecting state. However, the Panevezys-Saldutiskis judgment quoted above reveals a more fundamental point: no claim can exist when the nationality of claims rule is not satisfied. This suggests that the foreign nationality of an individual is a requirement of substance in relation to the alleged breach; it is not just that the claim is not admissible, but no international responsibility will exist without satisfaction of the nationality of claims rule. The international minimum standard only applies to foreign nationals and gives rise to international state responsibility when breached. In this sense, nationality is more than a formal requirement unconnected to the substance of the claim. It reflects the rule (pre-existing human rights law) that states are not internationally responsible for the treatment of their own nationals. This rule, while now largely abandoned, was more widely supported in the past.15 As Borchard also stated, the enjoyment of rights was dependent on nationality, and the distinction between foreigners and nationals in this respect had serious consequences for the legal regimes applicable to individuals.16 Provided their state of nationality was willing to resort to diplomatic protection, foreign nationals could enjoy a more advanced set of individual human rights. As was made clear in the Roberts claim,17 foreigners enjoyed the rights under the international minimum standard, even if local nationals were not treated in accordance with this standard.18 Although states may have been presumed to apply this standard to their own nationals, and the likes of Borchard strongly believed in the civilizing mission of the international minimum standard,19 no other state had standing to hold a state responsible for violations of the rights of its own nationals.(p. 256)

Nationality, therefore, was essential to ensure the enjoyment of human rights, because the minimum standard only applied to foreign nationals. The invocation of responsibility was a privilege granted to states on behalf of their nationals, for the protection of their rights, providing both the standard and the standing. This notion often led to the preferential treatment of foreigners and ensuing resentment against intervening foreign states. The broad means allowed for intervention, which could and sometimes did include the use of force,20 aggravated such resentment, resulting in ‘gunboat diplomacy’.21 States receiving claims of diplomatic protection often considered the actions by states on behalf of their nationals as intrusive incursions into their domestic affairs. Responses emerged in the form of the Drago Doctrine, the Calvo clause, and the principle of national treatment, discussed in further detail below.22 It is important to note, however, that states have attempted to limit the enhanced status of foreign nationals, by providing for treatment equal to that of their own nationals, and to force foreign nationals to renounce the possibility of invoking protection by their state of nationality. Such attempts have not been successful,23 even if understandable in light of the sometimes-abusive nature of diplomatic protection and tension between the realm of domestic affairs and the rules that international law imposes (and enforces). Although the enjoyment of rights today is no longer dependent on nationality—indeed, human rights instruments largely prohibit differentiation on the basis of nationality24—the next section will demonstrate that traces of a desire to preserve sovereignty in this realm remain.

The unequal treatment between nationals and foreigners in the law of diplomatic protection, with foreigners sometimes enjoying a higher standard of protection, has provided a source of inspiration for the abandonment of nationality as a basis for the enjoyment of rights in human rights law. Garcia Amador, the first ILC Special Rapporteur on State Responsibility, opined that fundamental rights should be vested in the individual as such and not be derived from the state of nationality.25 Higgins similarly (p. 257) wrote that ‘the individual has in fact been badly served by the nationality-of-claims rule’, but suggested that states would not act on behalf of the interest of the individual.26 Others have suggested that the international imposition of the minimum standard was no luxury, since foreign individuals usually were treated significantly less favourably than nationals, and that ‘national treatment’ would lead to discrimination, rather than to equal treatment.27 Clearly all would benefit from a system in which rights were owed to individuals, not to the state of nationality of foreign nationals.

A further observation must be made in the light of the bond of nationality and the source of rights. The traditional law of diplomatic protection, though not the final approach in the ILC Draft Articles on Diplomatic Protection, often assumed that the protecting state was claiming its own rights. The locus classicus for this doctrine is the Mavrommatis Palestine Concessions case, in which the court states that the 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’.28 Modern human rights law rejected the notion that individuals had no rights of their own, another ‘negative’ influence of the law of diplomatic protection on human rights law. A clear example is the American Declaration on the Rights and Duties of Man, which states in its preamble that: ‘The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality.’29 In the light of the foregoing, it should be noted that the early scholars writing about diplomatic protection demonstrated some recognition of ‘universal’ rights, or the rights attached to human beings qua human beings rather than foreign nationals. Borchard stated that ‘the individual, as a human being, is accorded certain fundamental rights by all states professing membership in the international community’.30 Yet, these rights were meaningless unless the state of nationality of the individual protected them. In his more detailed discussion of the relevant rights, Borchard assessed them only from the perspective of the foreign national, not the human being as such. As he continued:

Whatever the origin, therefore, of the rights of the individual, it seems assured that these essential rights rest upon the ultimate sanction of international law, and will be protected, (p. 258) in last resort, by the most appropriate organ of the international community—the national state of the individual or those states whose interests are most directly affected.31

We find here the beginnings of a legal order that is not purely bilateral, in the sense that the state was considered an organ (perhaps a subsidiary) of the international community empowered to look after the community’s (and not only its own) interests. Yet, clearly no claim could exist without satisfying the nationality of claims rule; so even if there existed a notion that human beings enjoyed rights qua human beings, it did not lead to a lessening of the importance of nationality for the effectuation of those rights. In addition, in the exercise of the only available mechanism for protecting of these rights, the individual had no role. As Borchard explained, [the claimant] state, in demanding redress, does not represent the individual who has sustained the injury, and does not give effect to his right, but to its own right, the right, namely, that its citizen may be treated by other states in the manner prescribed by international law’.32 Therefore, while individuals might have had international rights independent of their nationality, the claiming of such rights was reserved to the state of nationality. It was only in 1970, in its famous Barcelona Traction case, that the ICJ recognized standing for individual injury beyond diplomatic protection, even if it still remains to be applied in practice.33

2.2  The sovereignty of the territorial state

Under general international law, individual (or indirect) claims will only be admissible to international settlement once local remedies have been exhausted.34 The law on diplomatic protection forms no exception and similarly requires the exhaustion of local remedies for the admissibility of claims, as is reflected in Articles 14 and 15 of the ILC Draft Articles on Diplomatic Protection. A thorough discussion of the local remedies rule is beyond the scope of this chapter, but the chapter will discuss briefly the role of the rule in preserving sovereignty and its presence in most human rights instruments today.35 In the law of diplomatic protection, the rule has always been firmly established. Borchard recognized it, as did the PCIJ.36 Many cases involved arguments on the admissibility of the claim based on alleged (p. 259) non-exhaustion of local remedies.37 Indeed, the rule was well established to such an extent that the ICJ in the Interhandel case did not feel required to substantiate its affirmation of the rule’s existence.38

The primary purpose of the rule is to preserve the sovereignty of the respondent state by allowing it to discharge in its own way its responsibility to do justice, to investigate and adjudicate in its own tribunals the questions of law and fact which the claim involves and then, on the basis of this adjudication, to fulfil its international responsibility in meeting or rejecting the claim accordingly.39

A state can thus delay, or deny, the transformation of an individual claim on the domestic level to an international dispute. It can delay or avoid a pronouncement of an international dispute settlement body on the legality of its conduct within its own territory. Apart from reasons of efficiency—relevant evidence is often more easily available in the local judicial system, and international procedures can be more costly—the local remedies rule thus serves to give a state the chance to address the claim internally, without outside interference.40 Borchard listed the preservation of sovereignty and the opportunity of ‘doing justice to the injured party in its own regular way’ as primary rationales for the rule.41 As the ICJ stated in the Interhandel case, ‘the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system’.42

The nature of indirect claims, which may be invoked by means of diplomatic protection, justifies the application of the local remedies rule in another way, too. An indirect claim primarily concerns a domestic dispute, except for the fact that the injured party happens to have a foreign nationality and that the breach complained of is based on a rule of international law. The rule breached, however, finds application in the domestic legal order, and the foreign national is present in the relevant state. The situation giving rise to an indirect claim is thus strongly linked to the territorial state, which is the respondent to the claim. International law, then, grants that state the right to settle the matter domestically before having to answer on an international level.

When the relation between the foreign national and the respondent state is tenuous, or even absent (as in cases of transboundary harms), the primarily domestic nature of the dispute is somewhat weakened. One could even argue that when the injured individual has no relevant connection to the territorial state responsible for the injury, the respondent state loses its right to claim domestic settlement first, (p. 260) since the absence of a connection between the injured individual and the respondent state diminishes the domestic nature of the dispute. The ILC considered that this should then also affect the application of the local remedies rule. Article 15(c), by way of progressive development, provides that individuals with ‘no relevant connection’ to the respondent state will not be required to exhaust local remedies.43 The example given was related to nuclear fallout; after the Chernobyl accident, Scottish farmers sustained injury, because their crops had been contaminated. Assuming for the sake of argument that the Chernobyl accident constituted an internationally wrongful act, which could be attributed to the then Soviet Union, it would be unreasonable to require that these farmers apply to the Soviet judicial authorities before the United Kingdom could espouse their claim.44 It is important to note the rationale the ILC presented for this exception. It focuses entirely on the situation of the injured individual and the particular hardship or unreasonableness that may ensue due to a requirement to exhaust local remedies. This, in turn, is inspired by modern developments. In fact, the commentary contrasted its approach by reference to the ‘old’ approach to the rule and stated that:

the early history of diplomatic protection was characterized by situations in which a foreign national resident and doing business in a foreign State was injured by the action of that State and could therefore be expected to exhaust local remedies in accordance with the philosophy that the national going abroad should normally be obliged to accept the local law as he finds it, including the means afforded for the redress of wrong.45

This is somewhat of an overstatement. Even in Borchard’s day, the rule was not absolute and allowed for exceptions in case of denial of justice or when, as he stated, ‘no hope may be entertained of obtaining justice from them [ie the judicial remedies]’.46 In addition, the local law was not the only law applicable to a foreign national, who also enjoyed the international minimum standard. To the extent that this standard prescribed standards of justice, to be discussed below, a foreigner could challenge the requirement to exhaust local remedies.

The local remedies rule is also applicable to human rights regimes. The Inter-American system,47 the UN monitoring bodies and their complaints procedures,48 the European Court of Human Rights,49 and the African Commission on Human and Peoples’ Rights,50 all require the exhaustion of local remedies prior to the admissibility of an individual complaint. The relevant provisions of these (p. 261) conventions often stipulate that local remedies must be exhausted ‘according to the generally recognised rules of international law’.51 This is a direct renvoi to the rule applied to diplomatic protection, since it is in this area of international law that the rule has developed. In fact, the Inter-American Commission on Human Rights, in its first inter-state complaint, declared the case inadmissible, because it found that Nicaragua was presenting an indirect claim to which the local remedies rule applied and not, as it had tried to argue, a direct claim based on systematic violations of the Inter-American Convention.52 The Commission held that:

Having been unable to corroborate prima facie the existence of a generalized practice of discrimination against the Nicaraguan migrant population in Costa Rica, it would be inappropriate for the Commission to assume that no suitable and effective remedies exist to repair the violations alleged in this interstate communication. Accordingly, the exception to the rule set forth in Article 46 of the Convention [which contains the obligation to exhaust local remedies] does not apply.53

While this decision clearly demonstrates that the local remedies rule will apply to all cases brought on the basis of indirect injury (in other words diplomatic protection), many of the human rights treaties also contain specific exceptions to the requirement of exhausting local remedies, giving more precision to the rule. In addition, the human rights courts and bodies have now developed their own approach to the local remedies rule, and this has in turn influenced its application in the field of diplomatic protection. Without entering into too much detail, one could expect issues related to the exhaustion of local remedies presented in new diplomatic protection claims to rely on the case law of the various human rights procedures, especially when the merits of the claim concern human rights violations. Although the ICJ did not refer to human rights law when discussing the local remedies rule in the Diallo case,54 the ILC referred to case law and jurisprudence of the European Court of Human Rights, the Inter-American Court, and the Human Rights Committee to explain and support the rule and its exceptions in its commentary to Articles 14 and 15.55

(p. 262) 3. The International Minimum Standard

The law and practice of diplomatic protection has arguably been most significant for the development of human rights law with respect to the content of the rules. The international minimum standard applicable to aliens, laying down the rules binding upon states with regard to the treatment of foreign nationals on their territory, has informed human rights law in many ways. Most obvious is perhaps the prohibition of a denial of justice, which has been translated into rules on fair trials, such as Article 6 of the European Convention of Human Rights and Fundamental Freedoms (ECHR), Article 14 of the International Covenant on Civil and Political Rights, and Article 8 of the American Convention on Human Rights. Other elements of the international minimum standard have led to rights such as the prohibition on arbitrary detention; the prohibition on torture, inhuman, cruel, and degrading treatment and punishment; the right to property; and the right to life. In the following section, the content of the international minimum standard will be presented first, followed by a discussion of its function.

3.1  The ‘international standards that every reasonable and impartial man would readily recognize’56

There can be no doubt that the introduction of the international minimum standard in international law fundamentally changed the perception of individual rights, which together with other movements such as the protection of minorities, inspired modern human rights systems. The international minimum standard was the first step in a process leading to international law, and not municipal law, as the source of individual rights. This process, however, did not achieve its end overnight. In the early years of the twentieth century, Borchard could still write with authority that:

[I]‌t may be agreed that the so-called Rights of Man are not a product of international law and that the primary source of the alien’s rights is municipal law. But the argument overlooks the fact that treaty and custom have in the course of the 18th and 19th centuries placed limitations on the arbitrary power of a state to deprive aliens of elementary rights, and that international tribunals enforce these claims...[T]he body of international law developed by diplomatic practice and arbitral decision, vague and indefinite as it may be, represents the minimum which each state must accord the alien whom it admits. Whether called the fundamental, natural, or (p. 263) inherent rights of humanity or of man or of the alien, this minimum has acquired a permanent place in the protective ambit of international forums.57

The title of this section is taken from the Neer case58 that the Mixed Claims Commission, which settled claims between (nationals of) the United States and Mexico, decided in 1926. The case law of this Claims Commission is famous for its express adoption of the international minimum standard, not only in the Neer case, but also in the Roberts and Chattin cases.59 The claims commission saw no apparent difficulty in applying the standard to the facts presented before it, and it would sometimes admit, sometimes dismiss, a claim based on conduct (allegedly) contrary to the international minimum standard. Nonetheless, as Dunn wrote in 1932:

One finds, however, that the efforts of the authorities to give specific content to this ‘very simple, very fundamental’ standard have resulted in the utmost confusion and vagueness. One finds in fact a wide divergence among the members of the family of nations in systems of protection and methods of administering justice, as well as in ideas of human values and social ends.60

According to him, states had two obligations towards aliens: due diligence and not to deny them justice. States must observe due diligence in their treatment of aliens and must prevent injury where possible. The conduct of official organs towards aliens must further be in accordance with standards of due process and not lead to denial of justice.61 In this way, his approach is somewhat different from Borchard. Borchard considered that the minimum standard had a prohibition on discrimination at its core, which could be made more specific.62 While he also acknowledged that the standard was far from clear (describing it as ‘mild, flexible and variable’),63 he did engage in a discussion of substantive rights, rather than describing the authorities’ general approach. As he phrased it: ‘International law is concerned not with the specific provisions of the municipal legislation of states in the matter of aliens, but with the establishment of a somewhat indefinite standard of treatment which the state cannot violate without incurring international responsibility.’64 This is an understatement. Borchard went on at some length to spell out the rights aliens enjoyed, but in doing so he merely reported the opinions of various writers, without firmly establishing that they were correct or that case law supported their views. The following citation, which is worth giving in full, demonstrates his writing’s lack (p. 264) of clarity surrounding individual rights prior to the emergence of a human rights movement proper:

‘Civil rights’ being a term of uncertain definition, numerous publicists have adopted a category of rights, which they call public rights, the enjoyment of which must be granted to every alien. A list of these rights is difficult to draw. They include personal and religious liberty and inviolability of domicil [sic], liberty of the press, and other rights. In particular, the alien has the right to equal protection of the laws, which involves access to the courts and the use of the executive arm of the government in the enforcement of the rights granted.65

Borchard, then, considered that human beings had fundamental rights, which all states must uphold.66 He suggested that the minimum standard includes ‘the right to personal security, to personal liberty and to private property’.67 Later on, he referred to Fiore and Martens, who had also included the ‘right to exercise civil rights in conformity with the public law of the state[,]‌...the right to religious worship’,68 and the ‘right to live and procure the means to live[,] the right to develop intellectual faculties[,] the freedom of emigration and intercourse[,] and the right to be respected in person, life, honor, health and property’.69 In a similar vein, Friedmann considered that the international minimum standard included the right to life, the right to liberty of the person, and the right to protection of private property.70 Sadly, Friedmann noted in 1938 that those rights no longer enjoyed the international support they used to enjoy, due to the changed political climate in Europe, and he despaired of ‘the disintegration and destruction of those standards of Christian morality which, even ten years ago, no nation would have contested in principle’.71 This confirms the position that some agreement existed on a core list of rights applicable to aliens, but also that the international minimum standard’s foundations were not unshakable and that they clearly suffered in the political turmoil leading up to the Second World War.

The hesitations and lack of clarity concerning material rules as part of the international minimum standard applied less to the procedural dimension. Borchard felt more secure in this respect. According to him, the international minimum standard clearly prescribed fair administration of justice and due process.72 Eagleton also seemed to support a more formal content of the standard. He wrote that:

There is, and must be, an international standard for the administration of local justice for aliens, demanding the promulgation of laws, and their proper enforcement, and the creation (p. 265) of machinery, and its efficient operation, for the protection of aliens...This international standard is, in effect, a sort of international due process of law.73

Many other scholars writing on diplomatic protection in the first half of the twentieth century focused on the denial of justice as the basis for international claims, resulting in a vivid debate on the scope of the term—whether it should include all acts of government or only those of the judiciary, and how badly the judiciary must behave to give rise to a denial of justice—but producing the first steps in the direction of the right to a fair trial.74 It was, then, perhaps easier to decide that a wrongful conviction was the result of an unfair trial and thus contrary to the prohibition on denial of justice, than to determine at what moment treatment of a prisoner became inhuman.75

These writings might have led to the start of an international bill of rights, at first enforceable in the case of injuries to aliens only, but with the potential of applying to humankind in general. After all, if only international law could induce those ‘backward’ countries to adopt the Western style, soon their populations would enjoy the same level of civilization, complete with the civil and political rights that are part of liberal democracies.76 While many scholars and states professed clear views on the level of civilization of other states,77 analysis of the case law of the claims commissions of the early years of the twentieth century does not demonstrate a clear concept of rights. As the next section will show, the international minimum standard (p. 266) was a standard indeed: a yardstick used to measure conduct without imposing a regime in full.

The law on diplomatic protection did thus not move beyond the international minimum standard for the treatment of aliens, resulting in the continued application of the nationality of claims rule and a not very articulate list of rights. With the arrival of the human rights movement, a paradox emerged between the ‘old’ and the ‘new’: the former state-centred order in which only the state of nationality of a foreign national was entitled to enforce a minimum standard without judgment on the treatment of the rest of the population in the respondent state, and the dawn of ‘human rights’ irrespective of nationality and existing above national systems. This clearly troubled the first ILC Special Rapporteur on State Responsibility, Francisco Garcia Amador. As he stated: ‘The traditional view [ie that rights were only held by states, not individuals] is a fortiori incompatible with the present international recognition of the fundamental human rights and freedoms.’78 To him, the discriminatory nature of diplomatic protection constituted an insurmountable problem if diplomatic protection were to continue the way it had in the past.79 He therefore suggested a synthesis of the two regimes (human rights and diplomatic protection), which should eventually lead to the demise of diplomatic protection. By suggesting a synthesis of the two regimes, the presumption must have been that there were indeed two separate regimes that could be merged: human rights, which were universally applicable to all human beings and which comprised more rules ratione materiae, and diplomatic protection, which would implement the international minimum standard, but was only applicable to foreign nationals, and which was limited ratione materiae to what he called ‘essential or fundamental’ rights.80 This, in turn, presumes that their development was separate, too.

To some extent, it is undeniable that the concept of the rights of man differs from the protection of nationals. Even so, the list that García Amador presented as the fundamental rights includes the right to life, liberty, and security of person; to the inviolability of privacy, the home, and correspondence; to freedom of thought, conscience, and religion; to own property; to recognition everywhere as a person before the law; and to access to the court, a fair trial, and the presumption of innocence.81 As this chapter presents above, many of these rights are already featured in the lists that earlier scholars writing on diplomatic protection presented, but they are also the core civil and political rights found in universal and regional human rights treaties. This continuity ratione materiae cannot be a coincidence. Indeed, as García Amador stated, the international minimum standard ‘has also been pleaded (p. 267) and applied precisely in order to show that an alien has certain fundamental rights which the State wherein he resides cannot violate without incurring international responsibility’.82 What had changed was not so much the content of the rights, but the fact that they were no longer dependent on nationality: ‘Aliens (and even stateless persons) are on a par with nationals in that all enjoy these rights not by virtue of their particular status but purely and simply as human beings. In the recent international recognition of the right of the individual, nationality does not enter into consideration.’83 Thus the relevance of diplomatic protection for human rights law is undeniable, even if human rights law has now successfully eliminated the nationality of claims rule as a bar on the enjoyment of rights.

3.2  The international minimum standard as a safety net

The indeterminacy of the content of the international minimum standard and the focus on states and their sovereignty, inherent in the law of diplomatic protection of the first half of the twentieth century, limited the scope of the protection afforded to individuals. An analysis of the methodology of the various authorities of this era, confronted with claims based on injury to individuals, demonstrates the immaturity of the system with regard to the protection of individuals. International law was still in the process of finding a balance between the sovereignty of states in their internal organization and the imposition of rules in the international community. The arbitrators vacillated between the two sources of law. In the context of diplomatic protection, this issue was particularly relevant, because the protection was not against an injury that the state of nationality caused but against that caused by another state, to which the foreigner had travelled or emigrated voluntarily. The extent to which international law could determine how this foreign national was to be treated was a constant issue of debate, even if this debate was not yet very articulate.

Borchard made clear that aliens must abide by the local rules and customs and may be subjected to treatment different from that to which they are accustomed. In the context of a denial of justice, he concluded that protection is not allowed just because the treatment is different (or harsher) than in the state of nationality, but only ‘if the laws themselves, the methods provided for administering them, and the penalties prescribed are in derogation of the principles of civilized justice as universally recognised or if, in a specific case, they have been wrongfully subverted by the courts so as to discriminate against him as an alien’.84 What this reveals is the paradox that was part of the international minimum standard and the thinking of diplomatic protection. State sovereignty prescribed that states were free to (p. 268) determine their own internal affairs. Migrants were supposed to take for granted the risks involved in travelling and in being subjected to a foreign administration. Yet, states were simultaneously supposed to treat foreign nationals in accordance with the international minimum standard, even when this standard required better treatment than the one usually bestowed upon nationals. This standard of ‘civilised justice’, as Borchard phrased it in the citation just above, was ‘universally recognised’.85 This ‘universe’, however, consisted of the international community of civilized states, to the exclusion of non-civilized states (ie colonial entities and other non-Western states).86

Without wishing to enter into the debate on colonialism, civilizing missions, and cultural relativism, it is worth noting that the issue of who determines the standard was just as controversial then as now. Whereas states can decide today not to ratify human rights treaties or enter reservations to avoid unwelcome provisions, during Borchard’s time it was more difficult to avoid the application of the (Western-style) international minimum standard. International legal scholarship, and some states, responded to this problem by rejecting the existence of a minimum standard. The writings of Carlos Calvo, the doctrine of national treatment, and the insertion of Calvo clauses in contracts with foreigners, were largely unsuccessful efforts to counter the majority position, even if these attempts received sympathy.87 Case law from the Mexico-United States Mixed Claims Commission provides examples in this regard. The international minimum standard was thus upheld. Yet, due to its indeterminacy, it served not an absolute source of rights, but as a safety net to hold a state responsible in case of egregious behaviour, in an attempt to balance national sovereignty and international expectations. A discussion of three leading cases, the Chattin, Neer, and Robert cases, in this regard, will demonstrate the complexities.

The Chattin88 case is sometimes presented as the leading case on the international minimum standard and the inception of international human rights law. For instance, Steiner, Alston, and Goodman cite this case as an example of the roots of human rights law.89 Yet, a close reading of the decision reveals that the Commission was not very clear on the origin of the norms it applied and that it sometimes relied on domestic (Mexican) law and sometimes on an international standard, without, however, always being explicit in this regard. The fact that of the three commissioners, one attached a separate opinion and another a dissenting opinion to the decision and that these opinions primarily concerned the applicable law, only supports the position that the issue was far from clear. Mr Chattin, a US national, was accused of embezzlement. More specifically, he was accused of producing and selling false (p. 269) railway tickets and pocketing the revenues. He was on trial together with other individuals of US or Mexican nationality. He complained of wrongful arrest, unduly long procedures, an unfair trial due to the impossibility of reviewing evidence and questioning witnesses, and a wrongful conviction based on this untested evidence. Some claims were dismissed on the facts. Most interesting is the manner in which the Commission relied on domestic and international law to consider the claims. First, the commission considered that the arrest, and in particular the basis for it, were compatible with domestic requirements. Interestingly, the Commission added weight to this finding by stating that the Mexican law was similar to laws of ‘many other countries’.90 The claim was dismissed. The issue of the denial of justice was more complicated. The Commission not only considered it necessary to (re)define ‘denial of justice’ and to explain that the present case concerned the malfunctioning of the judiciary (as opposed to malfunctioning of other government agencies), but also to explain that such conduct must be measured against the international standard:

It is true that both categories of government responsibility—the direct one and the so-called indirect one—should be brought to the test of international standards in order to determine whether an international wrong exists...It is moreover true that, as far as acts of the judiciary are involved, the view applies to both categories that ‘it is a matter of the greatest political and international delicacy for one country to disacknowledge the judicial decision of a court of another country’...and to both categories the rule applies that state responsibility is limited to judicial acts showing outrage, bad faith, wilful [sic] neglect of duty, or manifestly insufficient governmental action.91

Yet, for the ultimate analysis, this distinction was largely irrelevant.92 What mattered was whether the conduct attributable to Mexico (directly or indirectly) was in breach of its own rules or the international minimum standard. In applying the international minimum standard, however, the Commission revealed an aspect of it that is not common in modern human rights law. In the final part of the decision, the Commission stated that:

[T]‌he Commission would render a bad service to the Government of Mexico if it failed to place the stamp of its disapproval and even indignation on a criminal procedure so far below international standards of civilization as the present one. If the wholesome rule of international law as to respect for the judiciary of another country...shall stand, it would seem of the utmost necessity that appellate tribunals when, in exceptional cases, discovering proceedings of this type should take against them the strongest measures possible under constitution and laws, in order to safeguard their country’s reputation.93

This refers to the relative nature of the international minimum standard; it is not a standard with absolute obligations, but one that will be applied when the injury (p. 270) reaches a certain level of seriousness.94 Both the separate and dissenting opinions clarify this further; Nielsen stated that: ‘Positive conclusions as to the existence of some irregularities in a trial of a case obviously do not necessarily justify a pronouncement of a denial of justice.’95 McGregor considered that: ‘[T]‌o delay the proceedings somewhat, to lay aside some evidence, there existing other clear proofs, to fail to comply with the adjective law in its secondary provisions and other deficiencies of this kind, do not cause damage nor violate international law.’96

Importantly, even though human rights are not always absolute, a different analytical structure is used to determine whether a violation has occurred. Most non-absolute rights, such as the freedom of expression, are not necessarily breached simply based upon interference with the government’s exercise of the right, but the fact of the interference brings the government’s act within the scope of the relevant international rule and requires that it be further examined. When a state imposes a ban on publications by a journalist, for example, this will constitute interference in the right to freedom of expression, regardless of the motivation or severity of the ban. Whether the ban constitutes a violation of the right will depend on further considerations, including whether the ban was prescribed by law, intended to protect a legitimate purpose, or necessary and proportionate in a democratic society. If the ban can be thus justified, there will be no breach of the right to freedom of expression, despite the interference, and the matter will still fall within the scope of the right to freedom of expression.

The Chattin claim demonstrated that certain conduct, even when in breach of the domestic standard, will not reach the international level, unless it can be qualified as ‘outrageous’, ‘in bad faith, in wilful neglect of their duties, or in a pronounced degree of improper action’, as the Commission in the Neer case, discussed hereafter, found.97 Short of excess, the situation will thus not fall within the scope of the international minimum standard. This is a different approach; it is not a justified interference, but no interference at all. The characterization of the international minimum standard as one of degree was important; only then could the balance be struck between the (strong) emphasis on sovereignty and non-interference in (p. 271) domestic affairs, and the first steps of an international movement of human rights. In fact, Commissioner MacGregor provides a clear example of this ambivalence. He disagreed with the majority, because he considered that ‘the judicial decision of a sovereign cannot be attacked by another state before an arbitral tribunal’98 and that the way trials are conducted ‘are matters of internal regulation and belong to the sovereignty of States’.99

In the Neer case, individuals in Mexico killed Mr Paul Neer, an American national, while he was out riding with his wife. Mrs Neer and her daughter subsequently claimed indemnities, since Mexico had allegedly failed to investigate the murder properly. While the Claims Commission eventually dismissed the claim, because it found that the Mexican authorities had not acted contrary to their obligations, it did discuss the standard applicable to the situation at hand. It stated that:

[T]‌he propriety of governmental acts should be put to the test of international standards, and (second) that the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.100

The Commission would not consider whether alternative approaches to the investigation into the murder of Mr Neer would have been more effective, but only whether the actual approach was just. In the words of the Commission:

It is not for an international tribunal such as this Commission to decide, whether another course of procedure taken by the local authorities at Guanaceví might have been more effective. On the contrary, the grounds of liability limit its inquiry to whether there is convincing evidence either (1) that the authorities administering the Mexican law acted in an outrageous way, in bad faith, in wilful neglect of their duties, or in a pronounced degree of improper action, or (2) that Mexican law rendered it impossible for them properly to fulfil their task.101

Although this case is much more explicit on the source of the obligation and the fact that domestic laws and practices cannot be brought forward in defence of certain behaviour that is contrary to international standards, a similar logic is applied here: conduct will only violate the international minimum standard when of a certain degree. International law, in other words, was not concerned with ‘minor’ offences against individuals. Those offences should be dealt with under national law. This approach also inspired the so-called ‘Fourth Instance Rule’, as human rights tribunals apply it and which prescribes, in the words of the Human Rights Committee, that the particular international tribunal ‘is not a “fourth instance” competent to re-evaluate findings of fact or to review the application of domestic legislation’, but (p. 272) rather an instance under which to consider whether a violation of international law has occurred.102

The Roberts claim applied the standard on the merits, imposing a level of protection not provided by domestic law. In addition to an excessive period of detention without charge, Mr Roberts, an American national, was detained in a very small cell with many other prisoners, poor sanitary conditions, and virtually no chance to exercise and to clean.103 Mexico explicitly argued that the prison conditions under which Mr Roberts was detained were no different from the conditions generally applicable to detainees in Mexico and that therefore the claim should fail on the merits. In addition, even though Mexican law stipulated that charges must be brought within six months of arrest, longer periods of detention without charge were no exception. Mexico saw no reason to treat Mr Roberts differently from its own nationals. The Claims Commission found that foreigners ‘are obliged to submit to proceedings properly instituted against them in conformity with local laws’.104 International law did not (yet) impose an absolute limit on pre-trial detention, and it was thus up to Mexico to determine the term. It did impose a prohibition on the denial of justice, including treatment unreasonably contrary to local law.105

Up to this point in the case, the Claims Commission used international law only to find responsibility for the violation of local laws, not to impose an external standard against which to test the local law. This changed when the Commission turned to the claim on inhuman treatment. Instead of taking the local customs as the standard and using the international minimum standard as a means to check whether the foreign national received fair treatment, the Claims Commission used the standard as an absolute measure and found that the treatment Mr Roberts suffered failed to meet the requirements. As the Claims Commission stated:

Facts with respect to equality of treatment of aliens and nationals may be important in determining the merits of a complaint of mistreatment of an alien. But such equality is not the ultimate test of the propriety of the acts of authorities in the light of international law. That test is, broadly speaking, whether aliens are treated in accordance with ordinary standards of civilization.106

The Commission did not explain exactly what this standard prescribed or how it related to national rules and regulations. Without much hesitation, the Claims (p. 273) Commission concluded its consideration that ‘the treatment of Roberts was such as to warrant an indemnity on the ground of cruel and inhumane imprisonment’.107

4. Conclusion

As a precursor to human rights law, the law on diplomatic protection has played an important role in setting some benchmarks for the protection of individuals. The most important element has not only been the international minimum standard itself, but also the acceptance, already in place by the mid-1920s, that this standard prevailed over national law. No longer could states claim that ‘equal treatment’ meant that everyone received inhuman treatment for which no international responsibility ensued. The international minimum standard suffered, however, from indeterminacy and weakness. Not only was there no internationally agreed list of rights and obligations, but international responsibility only arose in cases of blatantly abusive behaviour. The standard was, thus, more of a safety net than an absolute source of rights. This was due to the immaturity of the system and an inability—or unwillingness—to move away from national sovereignty and non-intervention in domestic affairs towards international human rights. Nevertheless, the first steps were taken, and the ‘fundamental’ rights of the human person were recognized.

The law on diplomatic protection influenced human rights law in other ways, too. First, the growing unease with its discriminatory nature—foreign nationals were sometimes receiving better treatment than locals—resulted in a clear move away from the attribution of rights by virtue of nationality in human rights law. What remained was the local remedies rule, which most systems for the protection of human rights have accepted.

The arrival of human rights law and the accompanying instruments for its enforcement have greatly benefitted individuals in their capacity to claim their rights. The influence of diplomatic protection on this system in its early days was important. Today, the two systems are increasingly intertwined. States support the claims of their nationals against other states before human rights courts,108 and they claim the rights of their nationals under international human rights conventions by (p. 274) exercising diplomatic protection.109 This simultaneous existence and development is to be supported, as long as human rights protection is not effective throughout the world.

Further Reading

  • Borchard EM, Diplomatic Protection of Citizens Abroad (Banks Law Publishing Co 1915)
  • UNGA, ‘First Report on Diplomatic Protection by John Dugard, Special Rappoteur’ (7 March 2000) UN Doc A/CN.4/506
  • Freeman AV, The International Responsibility of States for Denial of Justice (Longmans, Green & Co 1938)

Footnotes:

1  Translation: ‘Whoever mistreats a citizen, indirectly offends the state, which is bound to protect the citizen; and the sovereign of the latter should avenge his injury, if possible, obliging the aggressor to make full reparation; since otherwise the citizen would not obtain the great end of the civil society, which is, security.’ (Trans by ed.) Emer de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle Appliqués à la Conduite et aux Affaires des Nations et des Souverains, vol I (A Leide 1758) para 71 published in English as: Emer de Vattel, The Law of Nations (first published 1758, J Chitty (tr), 6th edn, T & JW Johnson 1844) para 71.

2  ILC, ‘Text of the Draft Articles on Diplomatic Protection and Commentaries Thereto’ in ILC, ‘Report of the International Law Commission’ (8 August 2006) UN Doc A/61/10.

3  ILC, ‘Draft Articles’ (n 2) Art 1.

4  Developments in the law on diplomatic protection, as the ILC Draft Articles on Diplomatic Protection reflect, include the acknowledgment that states protect the rights of individuals, not primarily their own rights; the abandonment of the requirement of genuine nationality and the adoption of continuous nationality; the protection of refugees, stateless persons, and ships’ crews; certain exceptions to the local remedies rule; and recommendations regarding the decision whether and by what means to resort to diplomatic protection. See ILC, ‘Draft Articles’ (n 2) Arts 1, 3, 5, 8, 10, 15, 18, and 19, respectively.

5  Examples of claims commissions instituted in response to armed hostilities are the France-Venezuela Mixed Claims Commission of 1902 and the US-Germany Mixed Claims Commission of 1933. Somewhere in between are claims commissions established in response to internal disturbances affecting foreign nationals, such as the US-Mexico General Claims Commission of 1926–27. However, during the negotiations on the British-Mexican Claims Commission it was initially proposed to limit the jurisdiction of the Commission to claims related to the revolution in Mexico and to create a second, and separate, claims commission for claims not related to the revolution, if such claims could not be settled diplomatically. This suggested that situations unrelated to armed conflict were also subject to international settlement. See British-Mexican Claims Commission (1930) V RIAA 3. Numerous other arbitral awards have been reported in the Reports of International Arbitral Awards (RIAA) for claims based on individual injury.

6  ILC, ‘Draft Articles’ (n 2) 33–34.

7  ILC, ‘Draft Articles’ (n 2) 72, 78–86.

8  Edwin M Borchard, Diplomatic Protection of Citizens Abroad or the Law of International Claims (Banks Law Publishing Co 1915) 13.

9  Provided, of course, that its granting of nationality is not contrary to international law. The discussion on the validity under international law of nationality is beyond the scope of the present chapter. For some general rules, see ILC, ‘Draft Articles’ (n 2) 31–35 (Art 4 and accompanying text).

10  Borchard, Diplomatic Protection (n 8) 13.

11  Article 1 reads: ‘For the purpose of the present draft articles, 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.’

12  The still-not-very-successful international law response to the latter situation is an invocation of responsibility erga omnes, as stipulated in Art 48 of the Articles on State Responsibility. ILC, ‘The Implementation of the International Responsibility of a State’ [2001] UNYBILC 116, 126–28.

13  There are some exceptions, which the ILC Draft Articles have included by way of progressive development; under Art 8, states are allowed to protect refugees and stateless persons under certain circumstances. While a human rights approach clearly inspired this provision, it is considered de lege ferenda and therefore outside the development of human rights law and diplomatic protection. See R (Al Rawi) v Foreign Secretary [2006] EWHC 972 (Admin), para 63, where the Court held that Art 8 was de lege ferenda ‘not yet part of international law’. If anything, it is the influence of human rights law on diplomatic protection that explains this provision.

14  Panevezys-Saldutiskis Railway Case (Estonia v Lithuania), para 68.

15  Borchard, Diplomatic Protection (n 8) 588. A formal source of this rule is the Convention on Certain Questions relating to the Conflict of Nationality Laws. It is interesting to note that this provision apparently reflects a compromise and that, at the time, various delegations preferred alternatives allowing the protection of dual nationals. See RW Flournoy, ‘Nationality Convention, Protocols and Recommendation Adopted by the First Conference on the Codification of International Law’ (1930) 24 AJIL 467, 471. See also the ICJ Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations 186.

16  See n 8 and accompanying text.

17  Roberts v United Mexican States.

18  This case will be discussed more extensively below, see n 103 and accompanying text.

19  See Borchard, Diplomatic Protection (n 8) 14, in which he explains that only states that respect the rights of humanity will be called civilized states and can be members of the international community, and that even if a state disrespects such rights ‘habitually’, ‘one or more states may intervene in the name of the society of nations’ with a view to enforcing respect for ‘human rights’. See also Edwin Borchard, ‘The “Minimum Standard” of the Treatment of Aliens’ (1939) 33 ASIL Proc 51, 56.

20  As Borchard stated, ‘the army or navy has frequently been used for the protection of citizens or their property in foreign countries’. Borchard, Diplomatic Protection (n 8) 448.

21  On the use of force and diplomatic protection, see UNGA, ‘First Report on Diplomatic Protection by John M R Dugard, Special Rappoteur’ (7 March 2000) UN Doc A/CN.4/506, paras 47–60; Borchard, Diplomatic Protection (n 8) 448. However, see also Richard B Lillich, ‘The Current Status of the Law of State Responsibility for Injuries to Aliens’ in Richard B Lillich (ed), International Law of State Responsibility for Injuries to Aliens (UP of Virginia 1983), who argued that diplomatic protection was not as abusive as is often contended. See also Frederick Sherwood Dunn, The Protection of Nationals: A Study in the Application of International Law (Johns Hopkins Press 1932) 19, asserting that ‘the normal case of protection seldom gets beyond the stage of diplomatic negotiation’.

22  See generally Donald R Shea, The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (U Minnesota Press 1955).

23  North American Dredging Company of Texas v United Mexican States.

24  It should be noted that discrimination between nationals or citizens, and non-nationals or non-citizens, is allowed. The right to vote, for instance, or entitlement to education and social security may be, and often is, limited to nationals or citizens. However, the discrimination that is allowed in such instances is only between citizens or nationals and ‘others’, not between the various ‘others’.

25  FV García Amador, ‘International Responsibility’ [1956] UNYBILC 173, 194.

26  Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1994) 52.

27  MS McDougal, HD Lasswell, and Lung-Chu Chen, ‘The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights’ (1976) 70 AJIL 432. The right to vote may seem to be not particularly relevant for the daily enjoyment of human rights. However, when they are not allowed to vote, foreigners cannot meaningfully participate in or influence the government of the host state. More importantly, the host state’s politicians do not need to seek the support of these individuals in elections. The possibility of support from their state of nationality should compensate for this. See also Erik JS Castrén, ‘Some Considerations upon the Conception, Development, and Importance of Diplomatic Protection’ (1962) 11 GYIL 37, 41.

28  Mavrommatis Palestine Concessions Case (Greece v Britain) 12.

29  American Declaration of the Rights and Duties of Man, preamble. The American Convention on Human Rights included the same consideration in its preamble.

30  Borchard, Diplomatic Protection (n 8) 12.

31  Borchard, Diplomatic Protection (n 8) 14.

32  Borchard, Diplomatic Protection (n 8) 18.

33  Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) paras 33–34. See ILC, ‘Articles on State Responsibility’ (n 12) Art 48.

34  See ILC, ‘Articles on State Responsibility’ (n 12) Art 44(b).

35  On the local remedies rule in general, see Chittharanjan Felix Amerasinghe, Local Remedies in International Law (2nd edn, CUP 2004).

36  Borchard, Diplomatic Protection (n 8) 332.

37  See eg the Panevezys-Saldutiskis Railway Case (n 14); Mavrommatis Palestine Concessions Case (n 28); Chorzow Factory Case (Germany v Poland).

38  Interhandel Case 6, 27.

39  Claim of Finnish Shipowners against Great Britain in Respect of the Use of certain Finnish Vessels during the War (Finland v Great Britain) 1501.

40  See also Amerasinghe (n 35) 56–61.

41  Borchard, Diplomatic Protection (n 8) 817.

42  Interhandel Case (n 38) 27.

43  ILC, ‘Draft Articles’ (n 2) Art 15(c).

44  ILC, ‘Draft Articles’ (n 2) commentary to Art 15, paras 7 and 8.

45  ILC, ‘Draft Articles’ (n 2) commentary to Art 15, para 8.

46  Borchard, Diplomatic Protection (n 8) 822.

47  American Convention on Human Rights, Art 46(1)(a).

48  Eg First Optional Protocol to the International Covenant on Civil and Political Rights, Art 5(1)(b).

49  See eg ECHR, Art 35(1).

50  African Charter on Human and Peoples’ Rights, Art 56(5).

51  ECHR, Art 35(1). See eg ACHR, Art 46(a)(a).

52  Nicaragua v Costa Rica.

53  Nicaragua (n 52) para 306.

54  Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections). Due to the parties’ arguments and the lack thereof, the Court only applied the rule applicable to the claim based on the allegedly illegal expulsion of Mr Diallo from the Democratic Republic of the Congo (DRC). The Court considered that based on estoppel, the DRC was prevented from relabelling the ‘refusal of entry’ as ‘expulsion’ and that a ‘refusal of entry’ was not ‘appealable under Congolese law’. The only ‘remedy’ left to Mr Diallo was applying for grace, but this did not constitute a legal remedy that must be exhausted for the claim to be admissible. It then rejected the DRC’s objection based on non-exhaustion of local remedies, paras 46–48.

55  ILC, ‘Draft Articles’ (n 2) 71–86, on Arts 14 and 15, with commentaries.

56  LFH Neer and Pauline Neer (USA) v United Mexican States 62.

57  Borchard, ‘The “Minimum Standard”’ (n 19) 53 (footnotes omitted).

58  LFH Neer (n 56).

59  LFH Neer (n 56); Roberts (n 17); BE Chattin (USA) v United Mexican States. For further detail, see Section 3.2 of this chapter.

60  Dunn (n 21) 141.

61  Dunn (n 21) 143–56. Eagleton also supported this view. See Clyde Eagleton, ‘Denial of Justice in International Law’ (1928) 22 AJIL 538.

62  Borchard, ‘The “Minimum Standard”’ (n 19) 62.

63  Borchard, ‘The “Minimum Standard”’ (n 19) 61.

64  Borchard, Diplomatic Protection (n 8) 39 (emphasis added).

65  Borchard, Diplomatic Protection (n 8) 42–43.

66  Borchard, Diplomatic Protection (n 8) 13–15.

67  Borchard, Diplomatic Protection (n 8) 12.

68  Borchard, Diplomatic Protection (n 8) 15.

69  Borchard, Diplomatic Protection (n 8) 15.

70  W Friedmann, ‘The Disintegration of European Civilisation and the Future of International Law: Some Observations on the Social Foundations of Law’ (1938) 2 MLR 194, 201–208.

71  Friedmann (n 70) 202.

72  Borchard, ‘The “Minimum Standard”’ (n 19) 63.

73  Eagleton (n 61) 557.

74  Eg Dunn (n 21); Eagleton (n 61); JW Garner, ‘International Responsibility of States for Judgments of Courts and Verdicts of Juries Amounting to Denial of Justice’ (1929) 10 Brit Ybk Int’l L 181; GG Fitzmaurice, ‘The Meaning of the Term “Denial of Justice”’ (1932) 13 British Ybk Int’l L 93; Oliver J Lissitzyn, ‘The Meaning of the Term Denial of Justice in International Law’ (1936) 30 AJIL 632; Alwyn V Freeman, The International Responsibility of States for Denial of Justice (Longmans, Green & Co 1938).

75  In this respect, the rules of one of the very first international courts, the Central American Court of Justice, are interesting. Article II of the Convention for the Establishment of a Central American Court of Justice provides that: ‘This Court shall also take cognizance of the questions which individuals of one Central American country may raise against any of the other contracting Governments, because of the violation of Treaties or Conventions, and other cases of an international character; no matter whether their own Government supports said claim or not; and provided that the remedies which the laws of the respective country provide against such violation shall have been exhausted or that denial of justice shall have been shown’ (emphasis added). This demonstrates two things: first, a denial of justice already constituted an exception to the requirement to exhaust local remedies in the first decade of the Twentieth Century; and second, claims based on a denial of justice were directly admissible without further attempts to exhaust local remedies for the denial of justice.

76  See Martti Koskenniemi, The Gentle Civilizer of Nations, the Rise and Fall of International Law 1870–1960 (CUP 2001) generally and 54–76 in particular. Although beyond the scope of the present chapter, there is no doubt that even modern human rights law presupposes some measure of liberal democracy for its implementation.

77  Eg Borchard (n 8) 25–26, distinguishing between the Orient and semi-civilized states, and the highest type of civilized government. See more generally, Koskenniemi (n 76); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2004) 84–96.

78  García Amador, ‘First Report’ (n 25) 194.

79  García Amador, ‘First Report’ (n 25) 199–203; FV Garcia-Amador, ‘Second Report on International Responsibility’ [1957] UNYBILC 104.

80  García Amador, ‘Second Report’ (n 79) 115.

81  García Amador, ‘Second Report’ (n 79) 113. In light of modern fundamental rights statements, it is interesting to note that this list does not include freedom of expression, or an express prohibition on torture or inhuman and degrading treatment and punishment, but does include the right to property.

82  García Amador, ‘First Report’ (n 25) 194.

83  Garcia Amador, ‘First Report’ (n 25) 194.

84  Borchard, Diplomatic Protection (n 8) 334.

85  Borchard, Diplomatic Protection (n 8) 334.

86  See Koskenniemi (n 76) 176–78.

87  See Garcia-Amador, ‘First Report’ (n 25) 201–202.

88  Chattin (n 59).

89  Henry J Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP 2008) 85–93.

90  Chattin (n 59) 285.

91  Chattin (n 59) 288 (emphasis in original).

92  A fact that Commissioner MacGregor acknowledged in his dissenting opinion in Chattin. Chattin (n 59) 309–10.

93  Chattin (n 59) 292–93.

94  A similar analysis has been applied to the denial of justice itself. Fitzmaurice has argued that: ‘Without attempting any enumeration of the acts or omissions which are intended to be covered by this interpretation of the term denial of justice, it may be said that they include not only a failure to hear a case, but all other palpable irregularities on the part of a court, e.g. a flagrant abuse by the court of its own rules of procedure, the extraction or procuring by the court of evidence by forcible or fraudulent means, or by threats or bribes, &c., and finally the delivering of a judgment which no honest and competent court could have given (though not a mere erroneous judgment if given in good faith’ Fitzmaurice (n 74) 103.

95  Chattin (n 59) 301 (concurring opinion of Commissioner Nielsen).

96  Chattin (n 59) 312 (dissenting opinion of Commissioner MacGregor).

97  LFH Neer (n 56) 62.

98  Chattin (n 59) 304.

99  Chattin (n 59) 307.

100  LFH Neer (n 56) 61–62.

101  LFH Neer (n 56) 62.

102  Van Meurs v Netherlands, para 7.1. The HRC and other international human rights bodies have widely applied this rule. To give two further examples, see Wright v Jamaica, para 5; García Ruiz v Spain, para 28.

103  Roberts (n 17) 80.

104  Roberts (n 17) 79.

105  Roberts (n 17) 80.

106  Roberts (n 17) 80.

107  Roberts (n 17) 80.

108  Eg Selmouni v France, in which the Netherlands supported its national against France; Soering v United Kingdom, in which Germany (the applicant’s state of nationality) supported the applicant.

109  Eg Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Judgment), in which Guinea claimed violations of the International Covenant on Civil and Political Rights and the African Charter on behalf of its national, Mr Diallo.