The Key Role of Nationality as General Condition of Diplomatic Protection

The general conditions of diplomatic protection of citizens abroad are the existence of the international wrongful act or omission attributed to a state, act which caused injury to an alien, the exhaustion of local remedies and the nationality/citizenship. Upon all of these, legal writers are discussing about the faculty of the state of nationality to espouse the claim of its national or to refrain from assuming it.
As basic elements of this legal institution, in the literature there were mentioned the territoriality of law, the nationality (with its four principles legal attachment, exclusiveness of nationality, mutability and continuity) and the protective function of the state (protection abroad). Therefore, an analysis of the subject request a preliminary study of three distinct relations: between the state and its own national, then, between the state and aliens who reside within it and, lastly, relations of states among themselves with respect to their rights over and their international responsibility for delinquencies toward aliens (Borchard E.M., 1927: p.497).
Nationality/citizenship represents the core condition for diplomatic protection. Without its fulfillment, the State of alien’s nationality neither can show its legitimate interest, nor its intention or quality to start the procedure and espouse the claim of its national. Presently, the society is characterized by dual or multiple nationalities.
The general rule in this field is that a person, natural or juridical, must have the nationality of the state claiming injury at the time at which the injury is inflicted, in order that there may be an actual violation of the substantive rules of international law relating to injuries to aliens. The nationality principle has a series of ramifications depending on what is the situation occuring in practice. A state’s right to exercise diplomatic protection is based on the link of nationality between the injured individual and the acting state. Thus, the general rule is that a state may not extend its protection to or to espouse claims of non-nationals. (Amerasinghe C.F., 2007: p.91).