Nationality of States and Diplomatic Protection: Navigating Through Changing Landscape of International Law by Nottebohm Case

Abstract

States are permitted to protect their nationals under the domain of international law. The state’s right to exercise this protection emerges from the link of nationality existing between the individual and his state. The present chapter explore the nature of this relationship required by international tribunal to exercise diplomatic protection for better understanding of the nature of present-day requirements, evaluating its desirability, and suggesting the desirable course of possible future developments. This has been done with help of a detailed analysis of concept of diplomatic perspective from consular access and espousal of claims, establishing the prerequisites in terms of an International Wrong, Exhaustion of Local Remedies, Link of Nationality, and finally with the aid of principles laid down in UN Draft Article on Diplomatic Protection, 2006 and Nottebohm case. The chapter takes both customary recognition of international law on the matter as well as recent developments in the field to check the intervention of the state in individual case of diplomatic protection as state is not under any obligation to take up its national’s case and resort to diplomatic protection if it considers this not to be in its own political or economic interests. Thus, to this extent that the intervention of the State is reduced or eliminated as a requirement for submission of international claims, the link of nationality will lose its relevance.