The protection of individuals by means of diplomatic protection : diplomatic protection as a human rights instrument

Abstract

Individuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained by the United States in Guantanamo Bay have been unable to improve their situation themselves. Their state of nationality however can protect them through the exercise of diplomatic protection, thereby invoking the international responsibility of the host state for a violation of international law. This mechanism has been subject to debate and criticism in recent years because of its (alleged) state-centred and its discretionary nature. Through an analysis of the nature of diplomatic protection, in particular the legal fiction, the modalities of its exercise and its relation to the general law of state responsibility, and its application in international and national practice the position of diplomatic protection in current international law is defined and the question of whether it is an appropriate mechanism for the protection of individual (human) rights is answered positively. Resort to this mechanisms by states should be encouraged in order to increase protection against violations of individual (human) rights.Individuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained by the United States in Guantanamo Bay have been unable to improve their situation themselves. Their state of nationality however can protect them through the exercise of diplomatic protection, thereby invoking the international responsibility of the host state for a violation of international law. This mechanism has been subject to debate and criticism in recent years because of its (alleged) state-centred and its discretionary nature. Through an analysis of the nature of diplomatic protection, in particular the legal fiction, the modalities of its exercise and its relation to the general law of state responsibility, and its application in international and national practice the position of diplomatic protection in current international law is defined and the question of whether it is an appropriate mechanism for the protection of individual (human) rights is answered positively. Resort to this mechanisms by states should be encouraged in order to increase protection against violations of individual (human) rights.