1. The right of diplomatic protection

2. The right of diplomatic protection
The invocation by a state of the int’l responsibility of another state in case of a breach of an int’l obligation belonging to a certain category
The obligation is owed to another state singularly (in a bilateral legal relationship)
It is not owed erga omnes or erga omnes partes;
And not to the injured individual or corporation
Consequences?

3. Conditions for exercise
Right of diplomatic protection may be exercised
If a state (A) is internationally responsible for conduct causing injury to foreign national or corporation
If breach of int’l obligation
If conduct is attributable to state A
If responsibility may be invoked according to int’l law
If claim is brought in accordance with rules relating to nationality of claims
If local remedies have been exhaustes

4. A breach of an int’l obligation
The international minimum standard (IMS)
Comp the Harvard Law School Draft Convention
International agreements
BITs
And others

5. IMS (I) An act or omission is wrongful …
If it is intended to cause, or to facilitate the causing of, injury
If it creates an unreasonable risk of injury through a failure to exercise due care (Harvard Draft Conv Art. 3)
Under certain conditions any of the follow may constite a breach:
Arrest or detention (Art. 5)
Denial of access (Art. 6)
Denial of a fair hearing (Art. 7)
Adverse decisions and judgments (Art. 8)

6. IMS (II) Taking of property or the use thereof (Art. 10)
Taking of property is not as such a breach
A taking of property …
Must serve a public purpose
May not be discriminatory
Must be accompanied by compensation, which is
Prompt
Adequate
Effective

7. Attributability
Conduct of organs of a state and persons/entities exercising governmental authority (ARSIWA Arts. 4-5)
Negative and positive obligations
Conduct of private actors
Acting on the instructions of a state, or under its direction or control (Art. 8)
A state acknowledges and adopts conduct as its own (Art. 11)

8. Nationality of claims: physical persons
As a point of departure, nationality is crucial
Is nationality a sufficient condition? (Art. 4)
Nottebohm Case (1955)
Multiple nationalities
Relative to third state (ADP Art. 6)
Relative to other state of nationality (Art. 7)
Principle of continuous nationality (Art. 5)
Is nationality a necessary condition? (Art. 8)
Remember: jus dispositivum

9. Nationality of claims: juridical persons
As a point of departure, the place of incorporation is crucial
Is incorporation a necessary and sufficient condition? (Art. 9)
Other kinds of juridical persons (Art. 13)
Principle of continuous nationality (Art. 10)
Remember: jus dispositivum

10. Nationality of claims: shareholders
Indirect injury
As a point of departure, shareholders are protected only indirectly
Piercing the corporate veil (Art. 11)
Direct injury (Art. 12)
Remember: jus dispositivum

11. Local remedies must have been exhausted (Arts. 14-15)
Exceptions:
No reasonable possibility of success
Undue delay in remedial process
No relevant connection between injured person and the allegedly responsible state
Injured person manifestly precluded
Waiver