Treatment of Aliens and Diplomatic Protection

In one line

If a State injures a foreigner, the wrong is done to the foreigner's State, and it is that State, not the foreigner, that may bring the claim.

In the wording a student can write in an exam: a State is responsible for injury to an alien within its territory where the treatment falls below the standard international law requires. The claim belongs to the alien's national State, which may exercise diplomatic protection at its discretion, subject to two conditions: the nationality of claims, meaning that the injured person must be a national of the claiming State, and the exhaustion of local remedies. Article 44 of the ILC Articles states both as conditions of admissibility.

The doctrine, and the fiction inside it

The classical statement is that in taking up the case of one of its nationals a State is asserting its own right, the right to ensure respect for the rules of international law in the person of its subjects.

That is a fiction, and it is deliberate. Under the classical theory the individual was not a subject of international law, so an injury to him could not be an international wrong unless it was reconceived as an injury to his State. The doctrine of diplomatic protection is the device that made the reconception work.

Three consequences follow from the fiction, and all three are examinable.

The claim belongs to the State. The State may bring it, settle it, or abandon it, and may keep any compensation it recovers. The individual has no right to insist.

The State may act for its own reasons. There is no obligation to protect. A State may decline for political reasons and the national has no remedy in international law.

The individual's own consent is irrelevant. He cannot compel the claim and, under the classical view, he cannot renounce it either. That is what the Calvo clause is about, below.

The standard of treatment

An old and unresolved argument, and MU's textbooks give it space.

The national treatment standard. An alien is entitled to the same treatment as nationals and no more. Pressed chiefly by Latin American and later by newly independent States, on the ground that a foreigner who comes to a country accepts its conditions, and that a higher standard for foreigners is a privilege, not equality.

The international minimum standard. There is a floor below which no State may go, whatever it does to its own nationals. Pressed by capital-exporting States, on the ground that a State which treats everybody badly cannot excuse itself by consistency.

The modern position is that the international minimum standard prevails, and that the argument has lost much of its force because human rights law now imposes obligations towards everybody within a State's jurisdiction, nationals and aliens alike. The minimum standard's content is generally stated as: no arbitrary arrest or detention, no denial of justice, protection of life and property against violence the State could reasonably prevent, and no expropriation except on conditions.