Diplomatic Protection for Dual Nationals: Effective-Nationality or Non-Responsibility?
| Author | Jessica Peake |
| Position | LLB Candidate, Sheffield University |
| Pages | 98-119 |
DIPLOMATIC
PROTECTION
FOR
DUAL
NATIONALS:
EFFECTIVE
NATIONALITY
OR NON-
RESPONSIBILITY?
JESSICA
PEAKE*
The
right
of
a
State to
exercise diplomatic
protection
in
respect
of
one
of
its
nationals
is
a
well-established principle
in
international
law.'
Diplomatic
protection
can
be
invoked
in
two main
ways:
through
the
system
of
consular
access
regulated
by
the
2
and
through
the
espousal
of
claims
by
a
State
in
international
proceedings
based
on
an
injury
to
a
national.
In
contemporary
world
affairs, the
importance
of
the rules
governing
when
and
how
diplomatic
protection
may
be
exercised
has been
starkly
illustrated
by
the
international
rendition
of
detainees
for
torture.
3
However
the
ability
of
dual
nationals
to
avail
of
diplomatic
protection
in
these or
other
comparably
grave
situations
is
far
from settled.
This
article
proposes
to
examine
international
jurisprudence
in
this specific
area with
a
view
both
to
identifying
the
underlying principles
and
seeing how
they
work
in
practice.
The
International
Law
Commission,
4
at
its
48
th
session
in
1996,
identified diplomatic
protection
as
a
topic appropriate
for
codification
and
progressive development.
5 Since
then
the ILC has
produced
numerous
reports
on
the
subject,
and has
paid particular
attention
to the
situation
of
dual
nationals
and
diplomatic
protection,
which
has
led
to
the
adoption,
by
the ILC
at
its
56
th
session
in
2004,
of
its
Draft
Articles
on Diplomatic
Protection.
6
Article
7
of
the
Draft Articles
proposes
a
criterion
of
LLB
Candidate,
Sheffield University.
The
principle
that 'whoever
uses
a
citizen
ill
indirectly
offends
the State, which
is
bound
to
protect
this
citizen'
was
enunciated
by
de
Vattel
in his
Law
of
Nations
(1758).
1963,
261.
3
For
a
discussion
which deals with
the
rendition
of
dual
Canadian/Syrian
national
Maher
Arar
from
the
US
to
Syria,
see
Craig
Forcese,
"The
Capacity
to
Protect:
Diplomatic
Protection
of
Dual
Nationals
in
the
'War
on
Terror"'
(2006)
17
Eur
J
lnt'l
L
369.
4
Hereafter referred
to
as
the
'ILC.'
5
Official Records
of
the
General
Assembly,
Fifty-first
Session, Supplement
No
10
(A/51/10),
[249]
and
annex
H,
addendum
1.
6
Report
of
the International
Law
Commission, Fifty-sixth
Session,
3
May-4
June
and
5
July-6
August
2004,
UN
Doc
Supplement
No
10
(A/59/10).
© 2007
Jessica
Peake and
Dublin University
Law
Society
Diplomatic
Protection
for
Dual
Nationals
'predominant
nationality'
to
determine
when
one
State
of
a
dual
national
is
able
to
exercise
diplomatic
protection
on
his
or
her
behalf
against
the other
State.
Diplomatic protection
is
dependent
on
nationality,
as
a
State
may
only
exercise
diplomatic
protection
in
respect
of
its
own
nationals;
therefore
a
potential
problem
arises
in
relation
to
dual
nationals
when
injured
by
one
of
their
States
of
nationality.
7 The
question
that shall
be
examined
in
this article
is
how
the issue
of
diplomatic
protection
of
dual
nationals is
resolved
by
international
law,
when
the
individual
is
a
national
of
both the
claimant
and
respondent
State, and
will involve
an
analysis
of
the
historical
development
in
the
area,
to
determine
how the
current
position was
reached, before
analysing
the
work
of
the ILC
to
see
if
it
has
arrived
at
an
appropriate
position.
Nationality
in
Context
Nationality
is
defined
as
"man's
basic
right,
for
it
is
nothing
less
than the
right
to
have
rights."
8
It
could
therefore
be
said
to
be
the
most
fundamental
of
all
rights
in
international
law,
because
it
is
from
nationality that
many
other
rights ensue,
for
example
the
right
to
diplomatic
protection.
Nationality
is
of
fundamental importance
as
it
is
the
primary link
between
the
individual
and
international
law.
9
The Universal
Declaration
of
Human
Rights
is
regarded
as
customary
law
which
all
States
must
adhere
tol
°
and
Article
15
of
the
Declaration
provides
that
"everyone
has
the
right
to
a
nationality,"
"
yet
the
beneficiary
of
these
rights
is
"bound
by
the
obligations
which
the
law
of
the
State
in
question
grants
to
or imposes
on
its
nationals."
12
Furthermore, nationality
is
the
only
means
by
which
an
individual may
seek
redress
on
the
international plane,
as
only
the State
of
7
Mavrommatis
Palestine
Concessions
Case
(Greece
v
Great Britain)
1924
PCIJ
(Ser
A) No
2,
at
12.
8
Independent
Commission
on
International
Humanitarian
Issues,
Winning the
Human Race?
107
(1988)
(quoting former
Chief
Justice
of
the
US
Supreme
Court,
Earl
Warren),
cited
in
Jeffrey
L
Blackman,
"State
Successions
and
Statelessness:
The
Emerging
Right
to
an
Effective
Nationality
under
International
Law"
(1997)
19
Mich
J
Intl
L
1141,
at
1148.
91bid,
at
1150;
Malcolm
Shaw,
International
Law
(5 h
ed,
Cambridge
University
Press,
2003),
at
725;
Sir
Robert
Jennings
and Sir
Arthur Watts
eds,
Oppenheim's
International
Law,
Vol
I,
Peace,
(9th
ed,
Longman,
1996),
at 849.
0
For
information
on
the
Universal
Declaration
of
Human Rights
as
customary
international
law
see
John
P.
Humphrey, "The International
Bill
of
Rights: Scope
and Implementation"
(1976)
17
Wm
&
Mary
L
Rev 527;
Louis
B.
Sohn, 'qhe
Human
Rights
Law
of
the
Charter"
(1977)
12
Tex
L
J
129;
all
cited in Hurst
Hannum,
'qhe
Status
of
the
Universal
Declaration
of
Human
Rights
in
National
and
International
Law"
(1995/1996)
25
Ga
J
Intl
&
Comp L
287.
11
Universal
Declaration
of
Human Rights, GA
Res.
217(A)
(II),
UN
Doc
A/180
at
71
(1948).
12
Nottebohm
(Liechtenstein
v
Guatemala)
(1955)
ICJ
Rep 4,
at
20,
hereafter
referred
to
as
Nottebohm.
2007]
To continue reading
Request your trial