Why This Matters
Traditional international law treated the individual as an object, not a subject. States were the only actors. When a foreign national was injured, the wrong was done to their state, not to them personally. The only remedy was diplomatic protection: the national's state choosing to espouse the claim on the international plane. The twentieth century dismantled this structure. Nuremberg held individuals directly responsible. Human rights treaties gave individuals rights enforceable against their own states. The ICC prosecuted individuals for the first time under a permanent institution. Nationality remains the legal bond that determines which state may exercise diplomatic protection on the individual's behalf. This chapter frames the entire Unit III: without understanding the individual's position in IL and the doctrine of diplomatic protection, extradition, asylum, and diplomatic immunities cannot be properly contextualised.
Chapter Overview
This chapter answers five questions:
- What is the traditional and modern position of the individual in IL? From object to partial subject.
- What is diplomatic protection? Its definition, conditions, and the Mavrommatis principle.
- What is nationality? Its definition, acquisition, loss, and the Nottebohm genuine link doctrine.
- What is double nationality? Its problems and the dominant nationality rule.
- What is statelessness? Its causes, consequences, and the conventions addressing it.
Position of the Individual in International Law
The traditional position held that only states were subjects of international law: individuals had no direct rights or obligations under it.
The individual featured in classical international law only indirectly. When a state injured a foreign national, the wrong was legally done to the national's state, not to the individual. The individual had no standing to bring an international claim. Protection depended entirely on the national's state choosing to exercise diplomatic protection, a discretionary act, not an obligation owed to the individual.
Three developments shattered this position in the twentieth century.
Nuremberg and Tokyo Tribunals (1945 to 1946): Individuals were held directly responsible under international law for crimes against peace, war crimes, and crimes against humanity. The defence that the individual was acting on state orders was rejected. International law reached through the state to the individual for the first time.
Human rights treaty system: The Universal Declaration (1948), the ICCPR and ICESCR (1966), and regional human rights conventions created rights held by individuals directly against their own states. The individual acquired standing before human rights treaty bodies and regional courts.
International Criminal Court (1998): The Rome Statute established permanent individual criminal responsibility for genocide, crimes against humanity, and war crimes. The individual became a direct subject of international criminal law.
| Dimension | Traditional Position | Modern Position |
|---|---|---|
| Status in IL | Object only | Partial subject |
| Rights | None directly; mediated through state | Direct rights under human rights treaties |
| Obligations | None directly | Direct criminal responsibility (Nuremberg, ICC) |
| Standing | No international standing | Standing before human rights bodies and ICC |
| Diplomatic protection | Only remedy | One remedy among several |
Diplomatic Protection
Diplomatic protection is the procedure by which a state adopts the claim of one of its nationals against another state for an internationally wrongful act and espouses that claim on the international plane.
When a foreign national is injured by a state's wrongful act, the injured individual has no standing in international law to bring a claim directly. Their national state may choose to take up the claim: this is diplomatic protection. By espousing the claim, the state converts what was the individual's private grievance into an interstate claim. The PCIJ stated this principle clearly in the Mavrommatis Case.
📋 Facts: Mavrommatis, a Greek national, held concessions granted by the Ottoman Empire in Palestine. When Britain assumed the mandate over Palestine, it modified the concessions in ways Mavrommatis alleged breached his rights. Greece espoused his claim against Britain before the PCIJ.
⚖️ Issue: Whether Greece had standing to bring a claim on behalf of its national for a wrong done to him by Britain.
🏛️ Held: The PCIJ upheld Greece's right to bring the claim. By taking up the case of one of its nationals and setting the dispute in motion, a state asserts its own right to ensure respect for international law. It is the state's own right that is vindicated, not merely the national's.
🎯 Principle: The foundational statement of diplomatic protection. When a state espouses its national's claim, it is asserting its own right under international law. The claim is the state's, not the individual's, at the international level.
Conditions for Diplomatic Protection
Three conditions must be satisfied before a state may exercise diplomatic protection.
Nationality of the claim: The injured individual must be a national of the protecting state at the time of the injury and continuously until the claim is settled. This is the continuous nationality rule. Nottebohm added the further requirement that the nationality must reflect a genuine link.
Exhaustion of local remedies: The individual must first exhaust all available and effective domestic remedies in the state that caused the injury before the national state may espouse the claim internationally. This rule reflects state sovereignty: the respondent state is entitled to an opportunity to remedy the wrong through its own legal system before international proceedings are commenced.
Local remedies need not be exhausted where they are obviously futile, ineffective, or unavailable. If the domestic courts lack jurisdiction, if the law itself is the violation, or if the individual faces systematic denial of justice, the exhaustion requirement is waived.
Internationally wrongful act: The injury must result from an act attributable to the respondent state that constitutes a breach of an international obligation, not merely an unfair outcome in domestic proceedings.
N ationality: continuous nationality with genuine link (Nottebohm)
C laim: internationally wrongful act causing injury
E xhaustion of local remedies: unless futile or unavailable
Discretionary Nature of Diplomatic Protection
Diplomatic protection is a right of the state, not a duty owed to the individual. The state may choose whether to espouse the claim, may settle it on terms the individual considers unsatisfactory, and may abandon it entirely. The individual has no enforceable right to demand that their state exercise protection on their behalf.
This is the central weakness of diplomatic protection as an individual remedy. It is entirely dependent on the political will and interests of the national state. States decline to exercise protection when diplomatic relations with the respondent state are more important than the individual's claim.
Nationality
Nationality is the legal bond between an individual and a state that confers on the individual the protection of that state and subjects the individual to its jurisdiction.
Nationality determines which state may exercise diplomatic protection on the individual's behalf, which state has jurisdiction over the individual abroad, and to which state the individual owes allegiance and obligations.
Acquisition of Nationality
Nationality is acquired through four principal modes.
Jus soli: Nationality acquired by birth on the territory of the state, regardless of the parents' nationality. The USA, Canada, and most Latin American states apply jus soli broadly.
Jus sanguinis: Nationality acquired by descent from a national parent, regardless of place of birth. Most European and Asian states apply jus sanguinis as the primary rule.
Naturalisation: Voluntary acquisition of nationality by a foreign national, typically after satisfying residence, language, and character requirements. The most common route to nationality change in adult life.
Marriage: Acquisition of nationality through marriage to a national. Modern law increasingly treats this as one route to naturalisation rather than automatic acquisition.
J us soli: birth on territory
J us sanguinis: birth from national parent
N aturalisation: voluntary acquisition after residence
M arriage: through marriage to national
Loss of Nationality
Nationality is lost through renunciation (voluntary relinquishment), deprivation (state action removing nationality as penalty or consequence), or substitution (automatic loss on acquiring another nationality where dual nationality is not permitted).
The Nottebohm Principle: Genuine Link
A state may exercise diplomatic protection only where there is a genuine connection between the individual and the state: this is the Nottebohm principle.
📋 Facts: Nottebohm was a German national who had lived and worked in Guatemala for thirty-four years. Shortly before World War II, he obtained Liechtenstein nationality through naturalisation, having spent only a brief period there. Guatemala confiscated his property during the war, treating him as a German national. Liechtenstein brought a diplomatic protection claim before the ICJ.
⚖️ Issue: Whether Liechtenstein could exercise diplomatic protection on behalf of Nottebohm given the circumstances of his naturalisation.
🏛️ Held: The ICJ held that Liechtenstein could not. Nationality for the purposes of diplomatic protection must reflect a genuine connection between the individual and the state: habitual residence, centre of interests, family ties, participation in public life, attachment shown by the individual. Nottebohm's connection to Liechtenstein was minimal and opportunistic. His naturalisation was obtained to secure neutral status. Guatemala was not obliged to recognise it for diplomatic protection purposes.
🎯 Principle: The genuine link doctrine: nationality of convenience, acquired without genuine ties, is not opposable to third states in international claims. Combined with Mavrommatis, Nottebohm defines both the basis and the limits of diplomatic protection.
Double Nationality
Double nationality arises when an individual holds the nationality of two states simultaneously, typically through the combination of jus soli and jus sanguinis operating across different states.
Double nationality creates three problems in international law.
Diplomatic protection between the two states of nationality: Which state may exercise protection? The dominant nationality rule applies. The state with which the individual has the stronger genuine connection prevails. Dominant nationality is determined by objective factors: habitual residence, centre of economic and family interests, participation in public life. The Merge Claim (1955) established that a claim is inadmissible where the respondent state is the state of dominant nationality, but admissible where the claimant state holds the dominant nationality.
Military service: The individual may owe military obligations to both states. Most bilateral treaties resolve this by election: the individual serves in the state of dominant nationality.
Diplomatic protection against third states: Both states of nationality may in principle espouse the claim. In practice, the state of dominant nationality takes precedence.
📋 Facts: Mrs Merge held both US and Italian nationality. The USA sought to espouse her claim against Italy for wartime property losses. Italy objected that no claim lay between two states of nationality.
⚖️ Issue: Whether the USA could exercise diplomatic protection on behalf of a dual national against the other state of nationality.
🏛️ Held: Diplomatic protection is inadmissible where the respondent state is the state of dominant nationality. Where the claimant state is the state of dominant nationality, the claim is admissible.
🎯 Principle: Dominant nationality governs diplomatic protection for dual nationals. The state of dominant nationality may bring the claim; the other state of nationality may not bring a claim against it.
Statelessness
A stateless person is an individual who is not considered a national by any state under the operation of its law.
Statelessness arises from four causes. First, conflict of nationality laws: a child born in a jus sanguinis state to parents who are nationals of a jus soli state may fall through the gap of both systems. Second, deprivation: a state withdraws nationality without the individual acquiring another. Third, renunciation without prior acquisition of another nationality. Fourth, state succession: the successor state's nationality laws fail to cover all inhabitants of the predecessor's territory.
Consequences of Statelessness
Statelessness produces severe and compounding practical consequences. The stateless person has no state to exercise diplomatic protection on their behalf. They are subject to the jurisdiction of the state on whose territory they reside but enjoy none of its citizenship rights. They cannot obtain a passport. They face deportation with nowhere to be deported to. They fall entirely between the jurisdictional claims of states.
Conventions Addressing Statelessness
The 1954 Convention Relating to the Status of Stateless Persons defines the stateless person and requires contracting states to grant stateless persons treatment at least as favourable as that accorded to aliens generally, with certain rights granted at the level of nationals: identity documents, freedom of movement, access to courts.
The 1961 Convention on the Reduction of Statelessness requires states to grant nationality to persons born on their territory who would otherwise be stateless. It prohibits deprivation of nationality where it would render the individual stateless.
C onflict of nationality laws: gap between jus soli and jus sanguinis systems
D eprivation: state removes nationality without replacement
R enunciation: individual relinquishes nationality without acquiring another
S uccession: successor state's laws fail to cover all inhabitants
| Dimension | National | Stateless Person |
|---|---|---|
| Diplomatic protection | Available from national state | None |
| Passport | Issued by national state | None (travel document under 1954 Convention only) |
| Deportation | Returned to national state | Cannot be deported: no receiving state |
| Allegiance | Owed to national state | None |
| IL standing | Mediated through national state | Limited rights under 1954 Convention |
Common Confusions
Diplomatic protection is a right of the state, not a duty owed to the individual. The state may choose whether to espouse, may settle on unfavourable terms, and may abandon the claim. Mavrommatis establishes that when a state espouses a claim it asserts its own right, not the national's. The individual has no enforceable entitlement to protection.
The rule is subject to important exceptions. Where local remedies are obviously futile, unavailable, or the law itself is the source of the violation, exhaustion is not required. The test is whether effective remedies exist, not merely formal ones.
The principle is about genuine connection, not speed. A rapid naturalisation reflecting genuine ties would satisfy Nottebohm. What the Court rejected was naturalisation obtained purely for strategic advantage with no real connection to the naturalising state.
The dominant nationality rule determines which state may act. Objective factors decide dominance: habitual residence, centre of interests, family connections. Individual preference is not determinative.
The 1954 Convention grants defined rights to stateless persons: identity documents, freedom of movement, access to courts. Statelessness deprives the individual of a national state, not of all legal protection.
Key Takeaways
Individual in IL: object to partial subject. Three milestones: Nuremberg, human rights treaties, ICC.
Diplomatic protection: state's right to espouse national's claim (Mavrommatis). Three conditions: NCE: nationality, internationally wrongful act, exhaustion of local remedies. Discretionary: state owes no duty to the individual.
Nationality: legal bond. Four modes: JJNM. Nottebohm: genuine link required for diplomatic protection to be opposable to third states.
Double nationality: dominant nationality rule governs. Merge Claim.
Statelessness: four causes: CDRS. 1954 Convention: status and minimum rights. 1961 Convention: jus soli safety net.
Memory Hooks: NCE: three conditions for diplomatic protection JJNM: four nationality acquisition modes CDRS: four causes of statelessness Traditional vs modern individual table National vs stateless person table
Diplomatic Protection
Diplomatic protection is the procedure by which a state adopts the claim of one of its nationals against another state for an internationally wrongful act and espouses it on the international plane. The PCIJ stated the foundational principle in the Mavrommatis Palestine Concessions Case (1924): when a state espouses a national's claim it asserts its own right under international law, not merely the individual's grievance. The claim becomes an interstate dispute.
Three conditions must be satisfied. First, the injured person must be a national of the protecting state continuously from the time of injury until settlement, and that nationality must reflect a genuine connection (Nottebohm, 1955). Second, the injury must result from an internationally wrongful act attributable to the respondent state. Third, the individual must have exhausted all available and effective local remedies in the respondent state before the national state may proceed internationally. Local remedies need not be exhausted where they are obviously futile or unavailable.
Diplomatic protection is a right of the state, not a duty owed to the individual. The state may refuse to espouse, may settle on any terms, and may abandon the claim. The individual has no enforceable entitlement to demand protection.
Part A (6 marks)
Nationality
Nationality is the legal bond between an individual and a state, conferring the protection of that state and subjecting the individual to its jurisdiction. It determines which state may exercise diplomatic protection, which state has jurisdiction over the individual abroad, and to which state the individual owes allegiance.
Nationality is acquired through four modes: jus soli (birth on territory), jus sanguinis (descent from a national parent), naturalisation (voluntary acquisition after residence requirements), and marriage. It is lost through renunciation, deprivation, or substitution.
The ICJ in Nottebohm (1955) added a critical qualification: for diplomatic protection to be opposable to a third state, nationality must reflect a genuine connection. Habitual residence, centre of interests, family ties, and participation in public life are the indicators. Nationality of convenience acquired without genuine ties is not opposable in international claims.
Part B (15 marks)
Discuss the Position of the Individual in International Law / Nationality / Statelessness
- Classical position: only states are subjects of IL; individual is object
- Diplomatic protection: state's right, not individual's (Mavrommatis 1924)
- Nottebohm Case 1955: nationality requires genuine link; effective nationality test
- Modern transformation: Nuremberg/Tokyo, human rights treaties, ICC
- Four modes of acquiring nationality JJNM: Jus soli, Jus sanguinis, Naturalisation, Marriage
- Double nationality: dominant nationality rule (Merge Claim 1955)
- Statelessness causes CDRS: Conflict of laws, Denationalisation, Renunciation, State succession
- 1954 Convention (status of stateless persons), 1961 Convention (reduction of statelessness)
Key Cases
Neer Claim (USA v. Mexico) (1926) Neer Claim 1926
Citation: 4 RIAA 60 (1926)
Rule: Established the "international minimum standard" for treatment of aliens. A state is responsible for injury to an alien only if the treatment amounts to an "outrage, bad faith, wilful neglect of duty, or insufficiency of governmental action so far short of international standards.
Flashcards
What was the traditional position of the individual in international law?
Only states were subjects of international law, and individuals had no direct rights or obligations under it. Individuals were objects, not subjects.
Name the three milestones that made the individual a partial subject of international law.
The Nuremberg and Tokyo Tribunals (1945 to 1946), which imposed direct individual criminal responsibility and rejected the superior orders defence; the human rights treaty system, comprising the UDHR 1948 and the two Covenants of 1966; and the Rome Statute 1998 establishing the ICC.
Define diplomatic protection.
The procedure by which a state adopts the claim of one of its nationals against another state for an internationally wrongful act and espouses that claim on the international plane.
What did the *Mavrommatis Palestine Concessions Case* (1924) establish?
By taking up the case of one of its nationals, a state asserts its own right to ensure respect for international law. At the international level the claim is the state's, not the individual's.
State the three conditions for diplomatic protection.
Nationality of the claim, meaning the individual is a national of the protecting state at the time of injury and continuously until settlement; exhaustion of local remedies in the respondent state; and an internationally wrongful act attributable to the respondent state.
Is diplomatic protection a duty owed to the individual?
No. It is a right of the state and wholly discretionary. The state may decline to espouse the claim, settle it on terms the individual dislikes, or abandon it, and the individual cannot compel it.
Define nationality.
The legal bond between an individual and a state that confers the protection of that state on the individual and subjects the individual to its jurisdiction.
Name the four modes of acquiring nationality.
Jus soli, by birth on the territory; jus sanguinis, by descent from a national parent; naturalisation, after satisfying residence and other requirements; and marriage to a national.
State the Nottebohm principle.
Nationality relied on for diplomatic protection must reflect a genuine connection between the individual and the state, judged by habitual residence, centre of interests, family ties, participation in public life, and attachment shown. A nationality of convenience is not opposable to third states.
What were the facts and outcome in the *Nottebohm Case* (1955)?
Nottebohm's naturalisation in Liechtenstein was opportunistic, obtained to secure neutral status, and his ties there were minimal. Guatemala was not obliged to recognise it, so Liechtenstein could not exercise diplomatic protection.
How is diplomatic protection resolved for dual nationals?
By the dominant nationality rule, determined objectively through habitual residence, centre of economic and family interests, and participation in public life.
What did the *Merge Claim* (USA v. Italy, 1955) hold?
A claim is inadmissible where the respondent state is the state of dominant nationality, and admissible where the claimant state holds the dominant nationality.
Who is a stateless person?
An individual who is not considered a national by any state under the operation of its law.
What do the two statelessness conventions do?
The 1954 Convention defines the stateless person and requires treatment at least as favourable as aliens generally, with identity documents, freedom of movement and access to courts at the level of nationals. The 1961 Convention requires states to grant nationality to persons born on their territory who would otherwise be stateless, and prohibits deprivation of nationality that would cause statelessness.