284
K. Henrard
When considering the obligations that used to be reserved for nationals, some of
them have been made generally applicable to residents (the duty to pay taxes), or
even more broadly to everyone in the jurisdiction of the state (obeying laws). The
transition in most countries to professional armies has eliminated military duties. It
may be so that states are said to have legitimate expectations of loyalty of their citizens, international law recognizes no such obligation.108 Admittedly, several countries require an oath of loyalty or allegiance from persons seeking to naturalise,109
but this does not tend to translate into concrete obligations.110
4.2.1 Rights, Entitlements and Protection Mechanisms (Traditionally) Reserved
for Nationals
Nationality is in several respects an important marker for international law purposes.
Indeed, nationality not only determines enemy status in times of war, but states are
also entitled to exercise diplomatic protection in favour of their nationals and refuse
extradition of their own nationals. Since the 19th century the rule of diplomatic
protection111 was established following which one state may invoke the responsibility of a third state for an internationally wrongful act inflicted on its nationals. As
diplomatic protection is conceived as a right of a state against another state, in the
sense that the internationally wrongful act against the person can be constructed as
an injury to the state itself, there needs to be a sufficient connection between the
state exercising diplomatic protection and the individual. Nationality is supposed to
reflect (guarantee) such a sufficient connection, or—referring to the ICJ in the Nottebohm case—a genuine link. In its 2006 Draft Articles on Diplomatic Protection the
International Law Commission (ILC) still clearly demands sufficient ties between
the individual and the state, but also acknowledges the impact of globalisation and
the growing migration streams.112
Traditionally, diplomatic protection is conceived as a right of a state that does not
go hand in hand with a duty towards the national disadvantaged by the internationally wrongful act.113 As these internationally wrongful acts will largely correspond
to the norms found in the principal human rights treaties,114 the growing individual
complaints rights before international courts (including treaty bodies) do reduce
the importance of diplomatic protection.115 Nevertheless, in the several instances
108
Boll (2005), pp. 41, 46.
Boll (2005), pp. 58–59.
110
See however the grounds for deprivation of nationality, some of which apply even if this would cause
statelessness, Art. 8(3) of the Convention on the Reduction of Statelessness (1961).
111
For a more comprehensive account of diplomatic protection, see Denza (2018) in this special issue.
112
Draft Articles on Diplomatic Protection the International Law Commission (2006) p. 8. A state can
also exercise diplomatic protection in relation to recognized refugees and stateless persons as long as
they are lawfully and habitually resident on its territory (tho Pesch (2015), p. 56).
113
The Mavrommatis Palestine Concessions (Greece v. Britain), 1924 PCIJ, Series A, No. 2.
114
Dugard (2009), tho Pesch (2015), p. 65.
115
See also Denza (2018) in this special issue; Dugard (2013), p. 3.
109
123