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The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law Under Attack

Published online by Cambridge University Press:  28 March 2017

R. B. Lillich
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Type
Editorial Comments
Information
American Journal of International Law , Volume 69 , Issue 2 , April 1975 , pp. 359 - 365
Copyright
Copyright © American Society of International Law 1975

References

1 See Guha, Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?, 55 AJIL 863 (1961)Google Scholar. See also Anand, R., New states and International Law 39-43 (1972)Google Scholar; Castañeda, , The Underdeveloped Nations and the Development of International Law, 15 Int’l Org. 38, 39 (1961)Google Scholar; Okove, F., International Law and the New African States 178-84 (1972)Google Scholar; and Sinha, S., New Nations and the Law of Nations ch. VI (1967)Google Scholar. Cf. Falk, , The New States and International Legal Order, 118 Recueil Des Cours (Hague Academy of International Law) 1, 94-96 (1966-11)CrossRefGoogle Scholar. For a convincing reply to these writers, see Jessup, , Non-Universal International Law, 12 Colum. J. Transnat’l L. 415 (1973)Google Scholar.

2 A preliminary survey of these attacks will be found in Lillich, , The Valuation of Nationalized Property in International Law: Toward a Consensus or More “Rich Chaos”?, in 3 The Valuation of Nationalized Property in International Law, to be published by the University Press of Virginia during 1975.Google Scholar

3 State practice in this area of international law is so extensive that the League of Nations found the subject “ripe” for codification nearly 50 years ago. For various attempts at codification, see Lillich, , Toward the Formulation of an Acceptable Body of Law Concerning State Responsibility, 16 Syracuse L. Rev. 721, 724-31 (1965)Google Scholar. See generally Baxter, , Reflections on Codification in Light of the International Law of State Responsibility for Injuries to Aliens, 16 id. 745 (1965)Google Scholar.

4 The Western Maid, 257 U.S. 419, 433 (1922).

5 Weakening or abolishing the right of diplomatic protection, Freeman observed when opposing an earlier attempt along the lines of recent ones, in effect frees “an interested state from restraints imposed by international law upon conduct which would otherwise produce a pecuniary liability to its sister nations. The far-reaching implications of this doctrine are so sinister and so deplorable that it should be resisted by the profession with every means at its command.” Freeman, , Recent Aspects of the Calvo Doctrine and the Challenge to International Law, 40 AJIL 121, 125 (1946)Google Scholar.

6 See generally Freeman, A., The International Responsibility of States for Denial of Justice ch. XVI (1938)Google Scholar. Such attempts occur regularly every generation. See, e.g., the replies of Hershey, , The Calvo and Drago Doctrines, 1 AJIL 26 (1907)CrossRefGoogle Scholar, and Brown, , The “Cardenas Doctrine,” 34 id. 300 (1940)Google Scholar. See text at and accompanying note 19 infra.

7 Case of the Mavrommatis Palestine Concessions, [1924] PCIJ, ser. A. No. 2, at 12:

It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another state, from whom they have been unable to obtain satisfaction through the ordinary channels.

8 See, e.g., the Nottebohm Case, [1955] ICJ Rep. 4, 24: “Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defense of the rights of the State.”

9 Case Concerning the Barcelona Traction, Light & Power Co., Ltd., [1970] ICJ Rep. 3, 32-51 passim. See text at note 40 infra. 10 GA Res. 1803, 17 UN GAOR, SOTP. 17, at 15, UN Doc. A/5217 (1962).

11 “The term ‘wealth deprivation’ . . . [is] used principally to avoid the simultaneous and, hence, ambiguous reference to both facts and legal consequences which so often characterizes the more popular ‘expropriation,’ ‘confiscation,’ ‘condemnation,’ ‘taking,’ ‘forfeiture,’ and the like. It is therefore conceived as a neutral expression which describes the public or publicly sanctioned imposition of a wealth loss (or blocking of a wealth gain) . . . which in the absence of some further act on the part of the depriving party would involve the denial of a quid pro quo to the party who sustains the deprivation (the component ‘wealth’ . . . being preferred to the more popular ‘property’ because it refers to all the relevant values of goods, services, and income without sharing the latter’s common emphasis upon physical attributes nor the civil law’s stress on ‘ownership’). Depending on a multitude of factual variables, a wealth deprivation may be found lawful or unlawful.” Weston, B., International Claims: Postwar French Practice 12 n. 10 (1971)Google Scholar.

12 12 UN TDOR Supp. 1, at 1, UN Doc. TD/B/423 (1973). The resolution, which was adopted by a 39-2-23 vote, Greece and the United States voting against and the developed states abstaining, is reprinted in 11 ILM 1474 (1972). See Note, UNCTAD: Permanent Sovereignty over Natural Resources, 7 J. World Trade L. 376 (1973)Google Scholar.

13 UN Doc. A/RES/3171 (XXVIII) (1974); 68 AJIL 381 (1974).

14 U N Doc. A/RES/3281 (XXIX) (1974); reprinted in Official Documents section, infra p. 484 and in 14 ILM 251 (1975). The Charter was adopted by a vote of 120- 6-10, the United States voting against along with Belgium, Denmark, the Federal Republic of Germany, Luxembourg, and the United Kingdom.

15 11 ILM 1475.

16 See note 13 supra.

17 An invitation Kuwait immediately decided to accept. The Times (London), Mar. 20, 1974, at 19, col. 2.

18 UN Doc. A/RES/3281 (XXIX) (1974) (Art. 2(2)(c)).

19 Shea, D., The Calvo Clause 19 (1955)Google Scholar. As Shea correctly notes, “[i]t is apparent that the acceptance of these two concepts would result in the elimination of the ‘enemy’ of diplomatic protection.” Id. at 20. Supporters of the Calvo Doctrine are frank to acknowledge this objective. For instance, in his Separate Opinion in the Barcelona Traction Case, supra note 9, at 294, Judge Ammoun states flatly that it “is aimed at nothing less than the abolition of unilateral diplomatic protection. . . .”

20 See, e.g., Judge Ammoun’s comments in the Barcelona Traction Case, supra note 9, at 290-95 passim. See generally the writers cited in note 1 supra.

21 Resolution 3171 (XXVIII) provides that “each State is entitled to determine the amount of possible compensation and the mode of payment. . . .” See note 13 supra. Moreover, paragraph 4(e) of the Declaration on the Establishment of a New International Economic Order, adopted by the UN General Assembly at its Sixth Special Session in 1974, while reaffirming what it characterizes as a state’s “inalienable right” to nationalization, for the first time omits entirely any reference to a corresponding duty of compensation—even under a “possible” compensation standard. UN Doc. A/RES/3201 (S–VI)(1974). The resolution is reprinted in 68 AJIL 798 (1974) and in 13 ILM 715 (1974).

22 Cf. A. Freeman, supra note 6, at 462: “No political entity claiming to enjoy the rights and privileges of membership in the society of nations can defend the inconsistent position of ‘legislating itself’ out of its international obligations.” Unfortunately, many developing states apparently take precisely this position.

23 For a forceful critique of past abuses, see Judge Padilla Nervo’s comments in the Barcelona Traction Case, supra note 9, at 247.

24 See generally Bowett, D., Self-Defence in International Law ch. V (1956)Google Scholar. On the right of forcible self-help to protect persons abroad, see Lillich, , Forcible Self- Help to Protect Human Rights, 53 Iowa L. Rev. 325 (1967)Google Scholar, and Humanitarian Intervention and The United Nations (Lillich, R. ed. 1973 Google Scholar).

25 Indeed, as Freeman observed some years ago:

[T]he shoe appears to be on the other foot. Now certain of the weaker states have adopted a policy of resisting every claim, irrespective of merits, at all costs, and of seizing every opportunity to tear asunder the principles of state responsibility which operate for the benefit of the international community as a whole. This is a most unfortunate tendency, not only from the standpoint of true justice, but from that of these states’ real interests. To seek to eliminate diplomatic protection is short-sighted in that its disappearance must inevitably discourage the influx of that capital which undeveloped countries still need to fulfill their destiny.

Freeman, supra note 5, at 143-44.

28 “Although the acceptance of the Calvo Doctrine would eliminate the abuses of diplomatic protection, it would also eliminate the institution itself, without substituting an acceptable alternative.” D. Shea, supra note 19, at 20.

27 Garćia Robles, quoted in Freeman, supra note 5, at 139.

28 Id.

29 Id. at 144.

30 Amerasinghe, The Quantum of Compensation for Nationalized Property, in 3 The Valuation of Nationalized Property in International Law, note 2 supra.

31 The convention is conveniently reprinted in 60 AJIL 892 (1966) and in 4 ILM 532 (1965). Significantly, no Latin American country has ratified it. See Szasz, The Investment Disputes Convention and Latin America, 11 VA. J. Int’l L. 246 (1971)Google Scholar.

32 Under Article 27(1) of the convention, “[n]o Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute.” 60 AJIL at 899. See Broches, , The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 136 Recueil Des Cours (Hague Academy of International Law) 331, 371-80 (1972-II)Google Scholar.

33 N.Y. Times, June 26, 1974, at 66, col. 2.

34 Young noted a decade ago that the acceptance of international jurisdiction over such disputes “seems to be considered as in some way derogatory to a state’s sovereign dignity and national pride. This is to look at the matter the wrong way round. The advance of technology and the economic and social forces at work in the modern world demand of all peoples, whatever their stage of development, continually closer cooperation for the benefit of all. The provision of machinery for the settlement of differences concerning private foreign investment should be viewed in this context, as part of the growth of international institutions of all kinds required to keep the modern world functioning.” Young, , International Remedies in Investment Disputes: A Forward View, in Rights and Duttes of Private Investors Abroad 359, 377-78 (1965)Google Scholar. Thus, for a newly-independent state to accept international jurisdiction “is not to regress into colonialism but to exercise the right of a free people to join with others in securing a rule of law before which all stand equal. This is not to move backward but to lead the march toward a better legal order in this field.” Id. at 378.

35 Id. at 377.

36 Indeed, all signs point to further attempts to institutionalize the Calvo Doctrine in the wealth deprivation field.

37 Barcelona Traction Case, supra note 9, at 165.

38 See text at and accompanying notes 7-9 supra.

39 Under Article 3 (l) ( b ) of the Vienna Convention on Diplomatic Relations of 1961, one of the stated functions of a diplomatic mission is “protecting in the receiving state the interests of the sending state and of its nationals, within the limits permitted by international law. . . .” The convention is conveniently reprinted in 55 AJIL 1064, 1065 (1961). See Kerley, , Some Aspects of the Vienna Conference on Diplomatic Intercourse and Immunities, 56 id. 88, 94-95 (1962)Google Scholar.

40 The phrase is from a forthcoming essay by Fatouros entitled The Transnational Corporation. Even as bitter a critic of diplomatic protection as Judge Padilla Nervo admitted in the Barcelona Traction Case that “[f]or the time being, the principle which recognizes the capacity of a State to intervene, by way of diplomatic protection of a company of its own nationality, has proved to be a fair and well-balanced safeguard or insurance, both for the investor and for the State, where foreign companies operate.” Barcelona Traction Case, supra note 9, at 245.

41 See Judge Ammoun’s admission in the Barcelona Traction Case, supra note 9, at 294, that “[t]he path toward this unconcealed objective [abolition of diplomatic protection] is certainly a long and arduous one. . . .”

42 By “modern” is meant a doctrine stripped of the abuses surrounding its use in the past, see text at and accompanying notes 23-26 supra, and sensitive to the real or imagined grievances not only of alien claimants, but of respondent states as well. For an intriguing “self-preservation model” of diplomatic protection, see Goodsell, , Diplomatic Protection of U.S. Business in Peru, in U.S. Foreign Policy and Peru 237 (Sharp, D. 1972)CrossRefGoogle Scholar. Examples of the growing use of assistance short of formal espousal may be found in Lillich, R. & Christenson, G., International Claims: Their Preparation and Presentation 98-101 (1962)Google Scholar.

43 This support, moreover, need not be defensive in nature nor grudgingly given, since regardless of its present imperfections the doctrine remains what it always has been: one of the few halfway effective procedures for the international protection of human rights. On the generally overlooked interrelationship between diplomatic protection and human rights, see Freeman, , Human Rights and the Rights of Aliens, 45 ASIL Procs. 120 (1951)Google Scholar; Garćia-Amador, , State Responsibility in the Light of the New Trends of International Law, 49 AJIL 339 (1955)Google Scholar; and Weis, , Diplomatic Protection of Nationals and International Protection of Human Rights, 4 Human Rights J. 643 (1971)Google Scholar. See also Sohn, L. & Buergenthal, T., International Protection of Human Rights ch. 2 (1973)Google Scholar.

After the expulsion of the Ugandan Asians in 1972, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities decided to “consider the problem of the applicability of the present provisions for the international legal protection of the human rights of individuals who are not citizens of the country in which they live and to consider what measures in the field of human rights would be desirable.” UN Doc. E/CN.4/1101, at 60 (1972). At present the Sub-Commission is considering several draft declarations on the subject. See, e.g., UN Doc. E/CN.4/Sub. 2/L.598 (1974). This exceptionally important development seems to bear out Freeman’s caustic observation that “[e]ven those nations which in the recent past would have choked trying to swallow the much more restricted concept of a minimum standard for aliens, today apparently do not experience as great a degree of indigestion at the conference table when asked to partake of a bill of fare garnished in a dressing called ‘human rights.’” Freeman, supra, at 122. In any event, the Sub-Commission’s long overdue attempt at a synthesis of these two branches of international law is a welcome development, especially when compared to the trends considered in this Editorial.