Diplomatic property right
The diplomatic protection law referred to in international law the right of a State of its nationals in relation to other subjects of international law to protect, first and foremost, but other states. For this purpose, the home state has all means of international law at its disposal. These are also known as diplomatic means . Diplomatic protection is particularly important because it is the most important legal consequence of nationality under international law . In the Mavrommatis Concessions case , the International Court of Justice made it clear that this is the law of the state, not of the individual . Therefore, only the state can waive the exercise of diplomatic protection, but not the individual citizen. This has been attempted , among other things, by the Calvo Doctrine .
Whether the national concerned has a subjective right to exercise the protective right by his / her home state depends on its domestic law. This is only the case in a few legal systems, since in a large number of situations it is conceivable that the state itself has no interest in asserting the claims of its dependents - this is usually a political question.
requirements
In order to assert diplomatic property rights, it is first of all necessary for the person concerned to exhaust the domestic courts of the damaging state and to try to enforce his claim ( Local Remedies Rule ). This can be disregarded if success here seems hopeless from the outset. Furthermore, the person concerned must not only have been a citizen of the home country at the time the damage occurred, but must also retain this nationality through the entire procedure until it is completed ( Nationality of Claims Rule ).
Although it is not absolutely necessary for the national side of citizenship, citizenship , international law requires a certain close relationship between the home state and the injured party for the exercise of diplomatic protection ( genuine link ).
Dual state
In the case of people who are citizens of two or more states, the question arises as to which state is allowed to exercise the diplomatic protection right. Here, on the basis of the criterion of the genuine link, the state to which the person concerned has a closer relationship is viewed as legitimate.
In particular, the nationality of the host state is often an obstacle to diplomatic protection.
Legal persons
Also legal persons enjoy diplomatic protection law. However, the main problem with transnational companies is that it cannot be clearly established which state is considered the home state. Various theories are advocated, according to which either the country of domicile (i.e. where the company has its registered office), the founding state (i.e. according to whose law the company was founded) or the controlling state (i.e. whose members make up the majority of the shareholders ) are regarded as the company's home state become.
literature
- Peter Fischer and Heribert Franz Köck: International Law . Linde, Vienna 2004, ISBN 3-7073-0517-1 .
- Hanspeter Neuhold u. a. (Ed.): Austrian manual of international law . Manz, Vienna 2005, 4th edition, ISBN 978-3214149130
