Lesson 21 Flashcards
What is the purpose of diplomatic protection?
for a state to protect national persons and property abroad against damages caused by the authors of another state
related to the states responsibility, this right can only be exercised by the state.
the idea is that a wrong against an individual or a company is an affront agains the dignity of the State of nationality.
Which Act governs Diplomatic protection?
ILC, Draft articles on diplomatic protection, 2006
What type of rules are diplomatic protection?
essentially customary rules
What is the definition of diplomatic protection? where can this be found
definition: invocation by a State, through diplomatic actions 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 of the implementation of such responsibility.
art. 1 Draft articles of diplomatic protection, 2006
What is ARSIWA?
Articles on the responsibility of States for internationally wrongful acts
Which article of ARSIWA relates to diplomatic protection?
Art. 44
What are the 3 objectives of diplomatic protection?
1) prevent violation of international law governing aliens
2) to cease an unlawful conduct
3) obtain reparation
What are the 4 requirements for the exercise of diplomatic protection?
1) injury caused by an int. wrongful act of the receiving state
2) nationality of claims (natural persons and corporations)
3) exhaustion of local remedies
4) clean hands doctrine (not generally accepted)
How to establish nationality of a person?
1) genuine link - meaningful connection
2) predominant nationality in the case of multiple nationalities
3) stateless persons and refugees are seen as habitually residents of the claimant State
how to establish nationality of a corporation?
1) state under whose law the corporation was incorporated
2) there are no protection for shareholders
What is a requirement of diplomatic protection?
exhaustion of local remedies
what are the exceptions to the exhaustion of local remedies requirement?
1) local remedies are futile
2) unduly delay in the remedial process
3) no relevant connection between injured person and respondent State
4) the respondent State has waived the need of exhaust local remedies
Under which Article does recommendations to states in regard to diplomatic protect provide?
art. 19 ILC Draft Articles Diplomatic Protection
Three types of recommendations to states in regard to diplomatic protection?
1) exercise diplomatic protection to nationals
2) consider the views of the injured person
3) transfer to the injured person any compensation awarded
Example of Diplomatic Protection?
Case of Jose Couso
