Decentralizing Diplomatic Protection in Judicial Practice

Abstract

This article aims to examine the evolution of diplomatic protection and the judicial practice governing it, with an emphasis on the exclusive right of the state versus the individual right. The research method is descriptive–analytical and is based on library sources, drawing on legal materials and international instruments in the fields of diplomatic protection and human rights. In response to the question of how international developments have influenced the scope and nature of diplomatic protection from the standpoint of an individual right, as well as what transformations have occurred at the international level regarding the state’s exclusive right to exercise diplomatic protection or the possibility of recognizing an individual entitlement to this institution for natural or legal persons, the findings indicate that among the most significant effects of international developments on the scope and nature of diplomatic protection is the enhanced status of the individual as a right-holder. This shift challenges the traditional, state-centered conception of the exclusivity of states’ rights in diplomatic protection and aligns with recent judicial and legal decisions issued by international courts and tribunals. It appears that the exercise of diplomatic protection in the past was solely the state’s prerogative and a discretionary right, which states invoked based on their own assessment of interests, with no legal obligation to do so. However, at present, given the elevated role and status of the individual in the international legal order, diplomatic protection has increasingly been conceptualized as a mechanism for the protection of human rights and has been elaborated and expanded through institutional and judicial practices.