The free movement of people from one state to another is now considered a normal part of international life. It should come as no surprise that one of the primary goals and concerns of modern nations is to ensure the safety of its citizens who make their homes and earn their livelihoods outside the country. This goal has evolved into what is today recognized as one of the most significant institutions of international law and is referred to as diplomatic protection. Individuals who, for a variety of reasons, find themselves living in a country other than that of their citizenship may run into one of the most common challenges in the form of discrimination simply due to the fact that they are foreigners. This is one of the most common problems that these individuals may face. They might be at risk for major issues such as wrongful arrest or deportation, unlawful property seizure, and other similar things. When confronted with such circumstances, people may wonder a number of things, including what rights they possess, whether or not those rights have been violated as a result of the actions or inactions of the state in which they are located, and, finally, how these rights can be protected under domestic law or under international law. The role of the state, which seeks to protect its citizens against violations of human rights, is limited to the convergence between two legal institutions, which have historically had a separate development. This is because the state’s primary objective is to protect its citizens against human rights violations. One of them is the concept of international protection of human rights, which seeks to defend all persons regardless of their citizenship, even against the state of which they are citizens. This protection extends even to the individual against their own state. The diploma is only safeguarded by a still-functioning educational institution. This institution has historically been used by governments so that they may provide a certain amount of safety for its citizens who are traveling outside of the country.
In the area of international law, diplomatic protection is subject to a wide variety of customs and precedents. Despite this, it continues to be one of the most contentious debates that can be found in this branch of the law[1].
Because there are now more people moving from one state to another than ever before, the claims that a state may make on behalf of its citizens will continue to be a topic of great concern. However, diplomatic protection has been linked to a strong emotional charge and a political weight, which makes it suspicious as a pretext to manipulate the assets of citizens or to interfere in the internal affairs of other states, which has led to the term “Trojan horse”[2] being used to describe this practice. As a result of improvements in relations between states, the crystallization of international law in general and the rights of persons in particular, fast development of diplomatic protection as a component of customary international law occurred. It is possible to trace the beginnings of diplomatic protection back to ancient times; nevertheless, the primary elements of what is inherited in our times were determined in the 18th century. Although it is now a well-established component of international law, the purposes of this mechanism and its application are still up for discussion. Although it is now a part of international law. A fundamental component of customary international law is the entitlement to diplomatic protection. Although it was included in the process of codification by the United Nations, we do not yet have a legally binding document as a direct consequence of this codification. In the course of the research, several United Nations papers will be cited[3]. The work done by the International Law Commission is a source that should not be overlooked. These texts are particularly significant due to the fact that they provide a summary of the views of the writers, the practice of states, and opinio juris. Their significance cannot be overstated due to the fact that they not only demonstrate how the practice of diplomatic protection has evolved over time but also serve as a representation of the current state of the law in this area.
dwin Borchard’s article “Diplomatic Protection of Citizens Abroad” published in 1919[1] is where we see the word “diplomatic protection” used for the first time. Borchard emphasized that, in terms of time, the practice of granting protection to citizens abroad emerged after the French Revolution; therefore, it is not necessary to look for the origin of this concept before this point in history. The Mavrommatis case is a good example of how the conventional understanding of diplomatic protection can be useful in legal analysis. According to this point of view, there is a disagreement between the country that is hosting the individual and the individual, who is a foreign citizen whose rights have been violated. If this person is unable to internationalize his case and move it out of the realm of domestic law, then his state of citizenship has the ability to take up his claim and make a meaningful change. In this particular case, the Court emphasized that when a state takes the case of one of its subjects and undertakes a diplomatic action or an international judicial process on its behalf, the state is claiming its right, which is the right to secure respect for the rules of international law through the actions of its subjects.[2] This right was emphasized by the Court. In this particular instance, the definition that was provided was derived from the theoretical definition that had been provided by Vattel. To begin, there is a literary component to the diplomatic protection system. When used in this context, the term “diplomatic protection” refers to the general aid that is provided by nations to their people who are residing outside of the country via diplomatic and consular posts. As one of the tasks of a diplomatic mission, “the safeguarding in the host state of the interests of the sending state and its residents within the limitations authorized by international law” is included in Article 3 of the Vienna Convention on Diplomatic Relations.[3] The Vienna Convention on Consular Relations recognizes a comparable function for consular offices as one of its responsibilities. Second, the term “diplomatic protection” refers to a more nuanced concept than merely having access to consular services in foreign governments.[4] This interpretation is the meaning that defines the concept of diplomatic protection in its most literal sense. On the other hand, and this was
[1] John Dugard “Diplomatic protection and human rights: the Draft articles of the International Law Commision, Australian Yearbook of International Law, 2003, f.76.
[2] Biswanath Sen, A diplomats handbook of international law and practice, Brill Academic Publication, 1988, f.319
[3] Frederich Sherwood Dunn, The protection of nationals:a study in the application of international law, Baltimore, 1932, f 37
[4] Mavrommatis Palestine Concessions Case (Greqi v. UK) http://www.worldcourts.com/pcij/eng/decisions/1924.08.30_mavrommatis.htm
something that was also brought up by the KDN, diplomatic protection in its most literal sense is distinct from the functions that are carried out by the sending state in order to assist citizens of the host state by ensuring that they have the right to protection or by making certain processes easier for them.
In conclusion, we are able to declare that the Republic of Albania does not have a responsibility to provide diplomatic protection on an international level; yet, such protection is required under the country’s constitution.[1] This constitutional requirement is allowed by international law, which, as a general principle, favors a more sophisticated treatment in domestic systems than it itself affords. This constitutional obligation was established by the United States Constitution. This stance, which is also endorsed by the KDN, is consistent with the overarching premise of international law, which states that it does not prejudice, and in fact supports, a more sophisticated consideration of domestic law. This interpretative framework reveals to us that if the Republic of Albania makes the decision not to provide Albanian citizens with diplomatic protection, it will not be in violation of any international obligations; rather, it will be required to conduct an analysis of the decision-making process in order to fulfill its constitutional obligations.
Phd candidate in Diplomacy/ Diplomat- Jonlinda Hada
Dr. in Diplomacy/ Diplomat- Lorenca Bejko
[1] Mohamed Bennouna, Preleminary report on diplomatic protection, UN doc. A/CN.4/484, f. 5
