The International Law Commission’s Articles on Diplomatic Protection Revisited

2017 ◽  
pp. 135-171
Keyword(s):  
International Law ◽  
Diplomatic Protection

The Fifty-Sixth Session of the International Law Commission

2005 ◽  
Vol 99 (1) ◽  
pp. 211-221 ◽  
Author(s):  
Michael J. Matheson
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflict ◽  
Diplomatic Protection ◽  
Sixth Session ◽  
International Liability ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.

Diplomatic Protection in EU Law: What’s New under the Sun?

2014 ◽  
Vol 9 (2) ◽  
pp. 150-175 ◽  
Author(s):  
Federico Forni
Keyword(s):  
European Union ◽  
International Law ◽  
European Commission ◽  
European Community ◽  
The Sun ◽  
International Agreement ◽  
Eu Law ◽  
The European Union ◽  
Diplomatic Protection ◽  
Effective Role

Summary This article aims to assess which subjects could offer diplomatic protection in third countries to European citizens and/or European Union legal persons on the basis of eu law. The absence of a common standard of assistance and the lack of specific agreements with third states has de facto excluded the diplomatic protection ex Article 23 of the Treaty on the Functioning of the European Union (tfeu, formerly the tec or Treaty establishing the European Community). Yet the practice shows cases in which the European Commission claimed the infringement of the rights of eu citizens and eu corporations in cases of violation of an international agreement concluded by the Union, or in cases of a breach of general international law in a matter of eu exclusive competence. These evidences indicate that the eu could play an effective role in ensuring the protection of European citizens in third countries in situations in which the eu member states have transferred their competences to the European Union. However, these actions remain discretional, since the ‘duty to protect’ is far from achieved both in eu and in international law.

Diplomatic Protection: Taking Human Rights Extraterritorially

2007 ◽  
Vol 44 ◽  
pp. 299-352
Author(s):  
Noura Karazivan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
The United Kingdom ◽  
Current State ◽  
Diplomatic Protection ◽  
Human Rights Treaties ◽  
Legitimate Expectations ◽  
Jus Cogens ◽  
To Receive

SummaryThis article argues that states should have a limited obligation — and not only a privilege — to extend diplomatic protection to their nationals when they are facing violations of their most basic human rights abroad. The author addresses the current state of international law regarding diplomatic protection, with a focus on the International Law Commission's failed attempt to impose a duty on states to exercise protection in cases of jus cogens violations. A review of domestic case law, particularly in the United Kingdom, Canada, Germany, and South Africa, shows that while some courts recognize legitimate expectations to receive diplomatic protection, all are reluctant to exercise judicial review of a denial of diplomatic protection. The author nevertheless examines whether adherence to international human rights treaties could entail a positive obligation for states to exercise diplomatic protection in order to protect the human rights of their nationals that are ill-treated abroad.

scholarly journals Diplomatic protection in international law and the United Nations

2013 ◽  
pp. 667-681
Author(s):  
Bojan Milisavljevic
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Customary Law ◽  
Diplomatic Protection ◽  
History Of ◽  
The United Nations ◽  
International Law Commission ◽  
The Impact ◽  
Law Commission

The paper deals with the issue of the diplomatic protection in international law and its development through the history of the international community. In this sense, the author investigates the practice of states regarding the application of diplomatic protection and the steps taken by the International Law Commission of the United Nations on the codification of this area. In 2004 International Law Commission adopted at first reading a full set of draft articles. In this paper is presented judicial practice, especially of the International Court of Justice, in the field of diplomatic protection in order to evaluate whether the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. Author presents the development of customary law rules relating to diplomatic protection and its transition into a whole system of rules through the work of the International Law Commission. In this sense, these are the basic stages in the codification of rules on diplomatic protection and the United Nations contribution to the protection of the rights of foreign nationals. This article points the development of universal and regional mechanisms to protect human rights and highlights the impact of those mechanisms on traditional measures of diplomatic protection.

A Matter of Interest: Diplomatic Protection and State ResponsibilityErga Omnes

2007 ◽  
Vol 56 (3) ◽  
pp. 553-581 ◽  
Author(s):  
Annemarieke Vermeer-Künzli
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Diplomatic Protection ◽  
Simultaneous Existence ◽  
Indirect Injury ◽  
Peremptory Norms

AbstractInternational law recognizes two mechanisms for the protection of individuals in case of violations of peremptory norms affecting individuals: invocation of State responsibilityerga omnesand diplomatic protection. While they share some fields of applications and are both based on some measure of indirect injury, there are important differences between these two mechanisms. This paper analyses and discusses these differences and similarities, and concludes by demonstrating that the essential distinction is to be found in the legal interest in the claim and the nature of the claim. The traditional conditions for the bringing of a claim based on indirect injury that are applicable to diplomatic protection (exhaustion of local remedies and nationality of claims) are not applicable to invocation of responsibilityerga omnes. This paper will argue that the latter is based on an obligation owed to the community as a whole, including the claimant State, and therefore constitutes a direct claim. In the interest of enhancing protection of individuals against violations of peremptory norms, the simultaneous existence of these two mechanisms should be welcomed.

7. State responsibility

2021 ◽  
pp. 116-138
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
International Organizations ◽  
Collective Responsibility ◽  
State Responsibility ◽  
Legal Obligation ◽  
The Core ◽  
Diplomatic Protection

This chapter discusses the international law of responsibility as primarily reflected in the 2001 International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. It opens in Section 7.2 with an overview of some of the core principles and elements of state responsibility for wrongful acts. Section 7.3 discusses the issue of state attribution before Section 7.4 examines joint and collective responsibility. Section 7.5 discusses the various circumstances that may preclude the wrongfulness of conduct otherwise in violation of a (primary) legal obligation. Section 7.6 looks into the consequences of state responsibility while Section 7.7 discusses who may be entitled to invoke state responsibility. Section 7.8 examines the rules on diplomatic protection and Section 7.9 provides a brief overview of the responsibility of international organizations.

24. Nationality of corporations and assets

2019 ◽  
pp. 512-520
Author(s):  
James Crawford
Keyword(s):  
International Law ◽  
Diplomatic Protection ◽  
Space Objects

The assignment of persons (including corporations) and property to states, in particular for the purposes of diplomatic protection, is normally approached through the concept of nationality, yet the problem must be solved in a variety of contexts, including jurisdiction. This chapter reviews international law governing the nationality of corporations, nationality of ships, nationality of aircraft, nationality of space objects, and state property in general.

Allegiance, Diplomatic Protection and Criminal Jurisdiction Over Aliens

1947 ◽  
Vol 9 (3) ◽  
pp. 330-348 ◽  
Author(s):  
H. Lauterpacht
Keyword(s):  
International Law ◽  
Present Article ◽  
Criminal Law ◽  
Constitutional Law ◽  
Point Of View ◽  
Considerable Importance ◽  
Criminal Jurisdiction ◽  
Diplomatic Protection ◽  
The Right

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

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