Harshita Verma & Meharnit Bhamrah, Maharashtra National Law University, Mumbai
1. INTRODUCTION
Diplomatic protection allows a state to advocate for its citizens who have suffered harm due to the actions of another state, thereby reinforcing the principle of nationality and the legal bond between individuals and their home country. This mechanism serves as a safeguard for individuals against injustices encountered abroad, ensuring that states uphold their obligations to protect their nationals. In Vattel's famous words: "an injury to a citizen is an injury to the state”.
Conversely, delocalization refers to the practice of resolving disputes outside the jurisdiction of national courts, often through international arbitration. This approach is particularly prevalent in international investment agreements, where parties seek neutral forums to address grievances,minimizing the risks of bias inherent in domestic legal systems. Delocalization allows for greater flexibility in the choice of applicable law and arbitration procedures, catering to the needs of multinational investors who may face challenges in host countries.
The concepts of diplomatic protection and delocalization represent two pivotal aspects of public international law, each addressing the complexities of state responsibilities towards their nationals and the jurisdictional challenges in international disputes. The interplay between diplomatic protection and delocalization raises critical questions about the effectiveness of state advocacy in the context of international arbitration. As states navigate the complexities of protecting their nationals while facilitating international trade and investment, understanding the dynamics between these two concepts becomes essential. The International Law Commission's Articles on Diplomatic Protection (2006) have codified this principle. There are certain characteristics, firstly It is discretionary in nature, not obligatory; it is up to the state to decide whether they want to exercise diplomatic protection. Secondly, there must be a strong link or genuine connection to the state, the injured individual or company must be a national of the state for eg. in the case of Nottebohm Case (Liechtenstein v. Guatemala, 1955)2 Liechtenstein attempted to exercise diplomatic protection over a national whose effective link to the country was weak, ultimately resulting in its dismissal and lastly the state will only step in if all the other local remedies have been exhausted. In addition to this, there are two mechanisms which help correctly apply the principle and assess whether the claims are admissible.
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