Dispute settlement options for the protection of nationals abroad

The treatment and protection of nationals abroad is an issue that has long been of concern in international law. Traditionally referred to as the treatment of aliens, international law has articulated standards to which states would be held in dealing with the business interests and personal safety of foreigners within their borders. The violation of these standards has resulted on occasions in considerable tension between the states concerned. The claims of nationals, taken up by their states, have been redressed in a variety of ways, and could lead to aggressive tactics, including the use of force. Litigation, particularly in the form of claims commissions and arbitrations, was historically promoted as an alternative to the use of force for dealing with the claims of nationals mistreated abroad. In considering how litigation is currently used for the protection of nationals abroad, it is important to identify at the outset the categories of claim that are likely to arise. This step is essential because international law has developed beyond broad standards on the treatment of aliens into complex rules reflecting the different activities in which individuals engage in overseas jurisdictions. Moreover, account must be taken of the more particular, or detailed, standards of treatment that have now emerged. Having established the categories of claim, it is then possible to assess the avenues available to address harm suffered by nationals abroad. These options are quite elaborate, and are commonly linked to the substantive body of law offering different protections. Beyond this, states have a right of diplomatic protection – the right of a state to take up a national's claim and assert that right against another state as if it was its own. The right of diplomatic protection is predominantly asserted at the point when a state is proceeding to international judicial avenues.