State responsibility, nationality, extradition and asylum

International Law · Treaties, diplomacy and responsibility. The idea in plain words, the rules to remember, the mistake to avoid and a worked example, written and checked by Mega Lecture.

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The idea

A state is responsible for an internationally wrongful act: conduct that is attributable to the state and that breaches one of its international obligations. The responsible state must make full reparation. When a foreign national is injured, his own state may take up the claim by diplomatic protection, but only after he has exhausted the effective local remedies of the host state.

Nationality is the legal bond between a person and a state, gained by birth on the territory, by descent or by naturalisation. Extradition is the surrender of an accused or convicted person to another state under treaty. Asylum is protection given by a state to a person fleeing persecution, whom it must not return to danger (non-refoulement).

Rules to remember

ILC Articles on State Responsibility (2001): wrongful act = conduct attributable to the state + breach of an international obligation; acts of state organs count even if beyond their instructions.
Chorzow Factory (1928): reparation must, as far as possible, wipe out all the consequences of the illegal act.
Mavrommatis (1924): in diplomatic protection the state asserts its own right. Nottebohm (1955): nationality needs a genuine link. Barcelona Traction (1970): a company is protected by its state of incorporation.
Local remedies must be exhausted unless they are ineffective or offer no reasonable prospect of redress.
Extradition: dual criminality, speciality, and the political offence exception.
Refugee Convention 1951: well-founded fear of persecution for race, religion, nationality, membership of a particular social group or political opinion; Article 33 non-refoulement; 1967 Protocol removed the time and geographical limits.
Territorial asylum is given inside the state's own territory; diplomatic asylum is given in a mission abroad.

Common mistake

Students think an injured foreigner has a right to make his state bring a claim. Diplomatic protection is the right of the state, which decides whether to use it, and the claim is not admissible until local remedies are exhausted.

Worked example

A national of State A has his factory in State B seized without compensation. He loses in B's trial court. An appeal to B's independent supreme court is open and effective, but he does not use it. State A at once brings an international claim. Is it admissible?

A may exercise diplomatic protection because the injured person is its national.
The rule of exhaustion of local remedies requires the individual first to use all effective remedies in the host state.
An effective appeal is still available, so no exception (ineffective or futile remedies) applies.

Answer: No. The claim is inadmissible until the local remedies in State B have been exhausted.

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