188 Access to Redress for Stateless Persons Under International Law reason, diplomatic protection was “traditionally” considered an exclusive right of the state.60 What does diplomatic protection entail? Diplomatic protection is based on the premise that ‘an injury to a national is an injury to the state itself’,61 which entitles the state to seek redress for the offense through diplomatic protection. This concept refers to a state’s right and ability62 to take up a claim on behalf of its nationals. Therefore, if a national was injured by a state other than his/her own, protection could only be ensured through a “fiction”,63 which meant that an injury to a national became an injury to the state of nationality of the harmed individual. This became the common practice for claiming reparations owed to victims of an internationally wrongful act.64 A State’s ability to exercise diplomatic protection has historically been considered—under international customary law65—an essential tool for the protection of (human) rights, property, and economic resources of its nationals. Diplomatic protection can take several different forms, including ‘negotiation, mediation, conciliation (including by conciliation commission), arbitration, adjudication…’66 among others. When reparations are owed, payments—typically in the form of a lump sum67—are made by the liable state to the harmed individual’s state68 in its name, rather than in the victims’ name. The state then usually pays the victims.69 It is therefore the state, rather than the individual, who has a say in the claims process70 under this “traditional approach”. Furthermore, when a state takes up a claim of one of its nationals, the claim is ‘automatically raised to the international plane resulting in international rights and obligations’.71 Traditionally, diplomatic protection encompassed ‘both the economic interests and the treatment of individuals abroad’,72 the latter which would cover any violations of the individual’s human rights. There is a body of case law of fundamental value for legal doctrine on diplomatic protection. The PCIJ—in its landmark Mavrommatis case—elaborated on this concept, stating that ‘it is an elementary principle of international law that a state is entitled to protect its subjects when injured by acts contrary to international law committed by another state’.73 Therefore, by resorting to diplomatic protection, ‘a state is in reality asserting its own rights’74 and the respect for international law. Following this reasoning, under the “traditional approach”, the state has the right to assert claims for violations—internationally wrongful acts— incurred by its nationals in the hands of another state. However, it should be kept in mind that Mavrommatis does not necessarily reflect current perspectives, as the judgment on the case was issued in 1924, a time when states were the ‘single and most important subject(s) of international law’.75 At the time, the doctrine 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 Ibid, at 25. Ibid, at 23; see also A Vermeer-Künzli, ‘As If: The Legal Fiction in Diplomatic Protection’ (2007) 18(1) European Journal of International Law, at 37–38. However, the state does not have the obligation to take up a claim on behalf of one of its nationals against another state. The doctrine of the ‘fiction’ regarding diplomatic protection was developed by the PCIJ in its landmark Mavrommatis case; see also International Law Commission (ILC), Draft Articles on Diplomatic Protection with commentaries (2006), 2 YBILC, A/61/10, at 25–26. Ibid, at 25–26. K Hailbronner, ‘Nationality in Public International Law and European Law’ in R Bauböck (eds), Acquisition and Loss of Nationality: Policies and Trends in 15 European Countries (1st, AUP, 2006). DE Arzt, ‘The Right to Compensation: Basic Principles Under International Law’ (Palestinian Refugee Research Net 1999), <http:// prrn.mcgill.ca/research/papers/artz4.htm> accessed September 17th, 2015. FE McGovern, ‘Dispute System Design: The United Nations Compensation Commission’ (2009) 14 Harvard Negotiation Law Review 171. M Frigessi di Rattalma & T Treves, The United Nations Compensation Commission: A Handbook (Kluwer Law International, 1999), at 8. DE Arzt, ‘The Right to Compensation: Basic Principles Under International Law’ (Palestinian Refugee Research Net 1999), <http:// prrn.mcgill.ca/research/papers/artz4.htm> accessed September 17th, 2015. M Frigessi di Rattalma & T Treves, The United Nations Compensation Commission: A Handbook (Kluwer Law International, 1999), at 8. C Whelton, ‘The United Nations Compensation Commission and International Claims Law: A Fresh Approach’ (1993) 26 Ottawa LR 607. F Orrego Vicuña, ‘Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement’ (2000)15(2) ICSID Review, at 5. Mavrommatis Palestine Concessions (Greece v. UK) [1924] PCIJ ser. B No. 3, para. 21. ibid; Panevezys-Saldutiskis Railway Case (Republic of Estonia v. Republic of Lithuania) [1939] PCIJ, Ser. A/B, No. 76, at 16; see also, for example, the Avena and Others Case before the ICJ, where Mexico asserted ‘its own claims, basing them on the injury which it contends that it has itself suffered, directly and through its nationals, as a result of the violation by the United States’ Avena and Other Mexican Nationals (Mexico v. United States of America), ‘Judgment’ [2004] ICJ, (at 35–36). F Orrego Vicuña, ‘Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement’ (2000)15(2) ICSID Review, at 1–2.