Under the doctrine of state responsibility a state must offer diplomatic protection to its nationals Discuss the above quote in relation to diplomatic protection in cases of dual nationality and/or of very close links with another state which is no

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‘Under the doctrine of state responsibility a state must offer diplomatic protection to its nationals’

Discuss the above quite in relation to diplomatic protection in cases of dual nationality and/or of very close links with another state which is not the person’s state of nationality.

Introduction

Under international law state responsibility is an essential point regarding to sovereignty and equality of states. A state is responsible for its wrongful acts, but also a state has a right not to be forced by other states. Therefore, when the national of the state is damaged, the state has a right to take actions which known as diplomatic protection of nationals. However, in the cases of dual nationality, the complication issues arise between states in order to decide the admissibility of right to offer diplomatic protection to dual nationality. This essay will discuss whether a state must protect their nationals under the doctrine of state responsibility in particular, in the cases of dual nationality and very close links with another state and it will argue that a state should offer diplomatic protection to its nationals based on a various of facts itself.

The concept of state responsibility and diplomatic protection of nationals

The state has a responsibility for its wrongful acts and violation of international law. The state responsibility is a wide spectrum of issues in international law. Shaw defines that state responsibility is a fundamental principle of international law which is based on international legal system, state sovereignty and equality of states (Shaw, 2003, 694). Therefore, if one state violates another state’s sovereignty and international law, the injured state can take actions against it. Crucially, Dixon claims that under international a state of national can exercise a diplomatic protection on behalf of the national, when a national of state is suffered injury or damaged property (Dixon, 2005, 242), in a way bringing a claim instead of national and claiming compensation.

Under state responsibility, the nationality is a key concept, which links between the individual and the state, in diplomatic protection of nationals. Article 15 of the Universal Declaration of Human Right provides ‘Everyone has the right to a nationality.’ and accordance with it, Article 2 of the ILC Draft articles on Diplomatic Protection 2006 states that a state has the right to exercise protection. However, it is doubtful whether a state must offer diplomatic protection to its nationals. There is no duty to offer diplomatic protection to nationals in international law due to diplomatic protection is based on the discretion of state. Indeed, as it presented the Calvo clause, the state can waive diplomatic protection. Conversely, recently, the criticism of discretionary diplomatic protection has soared. Evans claims that a state has to have an obligation of diplomatic protection to its nationals and claim on behalf of injured nationals because it is subject of human rights (Evans, 2006, 484) and sovereign of states. Either opinions are convincing, but there is still no legally bounding provision to duty of diplomatic protection. Effectively, as Aust argues, a state should decide to offer diplomatic protection to its nationals accordance with factors itself (Aust, 2002, 184).         

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The issue of dual nationality: de jure nationality

The sovereign equality of state versus effective link with state

Article 4 of the ILC Draft article Diplomatic Protection (2006) states the legal criteria of acquisition of nationality that:

For the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, decent, naturalization, succession of States or in any other manner, not inconsistent with international law.’

These are accepted conditions of acquisition of nationality in international ...

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