INTRODUCTION

Each and every state in the international domain has a basic obligation of care and protection of
the foreign nationals in its territory as well as to respect the sovereignty of the other states .These
obligations arises out of the very basic norms or practices or the duty of a state towards the
national of another state, that has been followed in international sphere since times immemorial.
In the sphere of international law, there are two basic procedures for the protection of
individuals in the case of violations of those laws from which derogation is prohibited or the
violations of peremptory norms of international law by a state affecting the individuals:

1.) Invocation of state responsibility erga omnes1,

2.) Diplomatic protection.

Erga Omnes or ‘towards all’ is a legal term describing obligations owed by states towards the
community of states as a whole. While both the invocation of state responsibility and diplomatic
protection share some field of application and are invoked in a way of indirect injury i.e. the
nation invoking the state responsibility or diplomatic protection is not directly injured but there
are certain differences between these two mechanisms. The basic difference between these two
mechanism is the procedure by which a claim is made by the state under these two procedures.
The nature of the claim along with remedies also varies under these two procedures. To bring up
a claim for the indirect injury under diplomatic protection, the first and foremost condition is that
the claim must be of its national and the claiming state must have exhausted its local remedies.
However, these conditions for bringing up of claim are not applicable under the mechanism of
‘invocation of state responsibility erga omnes’.

A state admitting into its territory foreign investments, foreign nationals, bureaucrats, diplomats
or any other natural or juristic person has certain obligations regarding the treatment meted to
them or simply referred as “treatment to aliens” and is bound to give them the protection of the
law of the land. Diplomatic protection mechanism comes into play when the damages and
injuries is caused to an alien, to compensate and make reparations for that injury or for the
wrongful act inflicted. The draft articles on diplomatic protection only deals with the situations
in which the diplomatic protection may be exercised or the condition that must met before
invoking diplomatic protection. These articles nowhere provide the definitions or descriptions for
the internationally wrongful acts for which the diplomatic protection can be invoked, as is
evident from the Article 19(a) of Draft Articles on Diplomatic protection which states that:-

“A State entitled to exercise diplomatic protection according to the present draft articles,
should:

1
Articles on State responsibility for internationally wrongful acts
 (a) give due consideration to the possibility of exercising diplomatic protection,
especially when a significant injury has occurred;”

Although, the word significant injury has been mentioned under Article 19(a) of Draft articles
on diplomatic protection but it does not clearly mention that what type of injuries will amount to
significant injury so as to invoke the responsibility under diplomatic protection. This results in
somewhat ambiguity regarding the application of diplomatic protection

On the other hand, if a state violates or omits or considers any wrongful act according to the
general rules of international law e.g. human genocide, violation of non-proliferation treaty etc.
then the state can be held liable and responsibility of the state can be invoked as mentioned under
the Articles on State responsibility. Secondly, the obligations arising out of invoking state
responsibility has multilateral application as such obligations are owed to multiple states or a
group of states or to the international community or to the whole world so according to the
scenarios present the aggrieved states can invoke responsibility.
BASIS OF DIPLOMATIC PROTECTION AND STATE RESPONSIBILITY

Paragraph 33 of Barcelona Traction2 case which stated that, ‘if a state admits into its territory
foreign nationals or foreign investments then it is bound to provide them protection under the
law and in case such a breach happens then the claiming state, for that breach must establish its
right to do so’. This paragraph formed the genesis for ILC to draft Article 48 of Articles on the
responsibility of states for Internationally Wrongful Acts which talks about invocation of state
responsibility on the condition that a peremptory norms has been breached. However, Article 48
of State responsibility and Draft articles on Diplomatic protection stands in a complex relation as
there are certain differences as well as similarities between the two in the manner how
responsibility is invoked.

As far as, diplomatic protection is concerned, the injury occurred in this case is indirect as it is
inflicted upon a national rather than a state and in the case of Article 48 of State responsibility
the injury is indirect because it is inflicted on the state other than the state invoking the
responsibility as is described in the heading of article 48 ‘Invocation of responsibility by a state
other than the injured state’. So to invoke a responsibility under diplomatic protection a state
must be able to establish that the injured individual was the national of claiming state and the
claiming state must at first exhaust its local remedies whereas in case of invoking state
responsibility, while the claiming state is not the injured state but the claim is a direct claim since
these types of claims are for the interests of whole international community and the claimaint
state is not required to prove the nationality of its citizens or exhaust the local remedies.

There are certain differences between State responsibility Erga Omnes and Diplomatic
protection as follows: Article 48 can be only invoked when there is grave violation of
peremptory norms, and it cannot be invoked when there is violation of individual’s right, so even
if there are indirect injuries which do not cause injuries to individuals then Article 48 can be
invoked. Diplomatic protection regarding an individual can be invoked and it does not matter on
the fact that whether there was violation of peremptory norm or not. The second difference is
that the state invoking state responsibility does not need to prove the nationality of individuals
who may have suffered the injury whereas the state invoking diplomatic protection need to prove
the nationality of its individuals. State exercising diplomatic protection has its own discretion
regarding remedies, reparation and countermeasures whereas state exercising State responsibility
does not have its own discretion regarding remedies, reparation and countermeasures as they are
exercising rights on behalf of other states and if the state invoking responsibility under Article 48
and claiming anything more than a remedy then it can be called to establish that it was acting for
the benefit of injured state and also claiming state itself cannot benefitted from reparation
received whereas state invoking diplomatic protection can transfer the reparation received to
2
Second phase of Belgium V Spain case, popularly known as Barcelona Traction, Light and power company limited
case : ICJ reports 1970, Judgement of 5 Feb 1970.
injured individual and are allowed to deduct a reasonable amount. A provision on Invocation of
state responsibility does not talk much about of what type of countermeasures can be sought by
claiming state; Although Article 54, talks about third states to take lawful measures but it does
not elaborate on it.

DIPLOMATIC PROTECTION
Draft Article 1, of diplomatic protection emphasizes the strong relation between the law of
diplomatic protection and state responsibility. He diplomatic protection allows the state to claim
rights for its individuals. Diplomatic protection in the history has been exercised in any cases
such as Nottenbohmm and Interhandel etc. Draft article 19 provides for state giving due
consideration to the exercise of diplomatic protection when the significant injury has occurred.
However, it does not define significant injury but reference is made to significant human rights
violations which does not come under peremptory norms but are treated as non-derogable.
Article 16 provides that ‘the other rights of States and natural or legal persons to redress for
injury suffererd due to internationally wrongful act for diplomatic protection will not be affected
by the draft articles on diplomatic protection.’ This provision is provided so as to negatively
affect the functioning of other mechanisms that would otherwise be applicable for indirect
claims.

INVOCATION OF STATE RESPONSIBILITY

State responsibility can be invoked by any member of international community if it thinks that
any other state has violated the peremptory norms which carry erga omnes character even though
the claiming state has not suffered any actual injury due to such violations, as erga omnes rules
provide the opportunity for claimant to protect key common interests. Article 41 of State
responsibility provides for consequences of a breach of an obligation, Article 48 sets out the
condition for invoking responsibility by claiming state and Article 54 provides for
countermeasures that can be taken by third states.

Controversies regarding invoking of state responsibility

Although the court recognizes the rule of jus cogens, but in a recent case concerning Armed
activities on the territory of Congo (Democratic Republic of the Congo V Rwanda)3, the court
rejected the counterclaim brought forward by Uganda concerning inhuman treatment of its
nationals by Congo, on the ground that Uganda was unable to establish the nationality of its
3
(New Application 2002), Judgement of 3 feb 2006, available at <http://www.icj-cij.org>
citizens. Though this opinion can be inferred right from the point of view of diplomatic
protection, Judge Simma argued that diplomatic protection was not the sole mechanism to
bring the claim and the state could have claimed under different law such as Article 48 of the
Articles on State Responsibility. But the main issue regarding his assertion is that if states has
invoked the state responsibility then how would it be different from the diplomatic protection
and how would it constitute a claim of erga omnes ?

Relationship between Erga Omnes and Actio Popularis

IN Roman Law, Actio Popularis general refers to an action brought by a member of the public
in the interest of public order. The working of the Actio Popularis can be seen in some of the
modern legal systems. For example, the concept of Public Interest Litigation (PIL) in India
which has been used to ensure the guarantee of several human rights such as sanitation, clean
drinking water, right to speedy trials etc. is said to be derived from the concept of Actio
Popularis.

The Actio Popularis is a municipal law phenomenon where there is already an existing judicial
system and hierarchy of judicial system is presupposed but the inherent access to the judiciary in
the application of international law at the international level is the serious obstacle to apply Actio
Popularis at the international level. In case of, claiming under Actio Popularis it is not mandatory
that the violation of peremptory norms should have essentially taken place. Also, Actio Popularis
is basically a representative claim where the claimant usually represents or takes up someone
else’s cause. The claimant may or may not have suffered any injury and there is also an absence
of direct legal interest for the claimant. Also, in Actio Popularis, the represented people has also
the same rights to bring up the claim butt is unable due to some reasons.

On the other hand, Erga omnes can be invoked by taking some countermeasures or other
mechanism such as unilateral sanctions. Although the principle of absence of direct legal injury
to the state or to the claiming individual is absent in both the scenarios but the state practicing
Erga Omnes has direct legal interest in the claim and the claim usually involves the interest of
the community including of the claimant.

Erga Omnes and Erga Omnes Partes

Another reason why Article 48(1)b stands very close to diplomatic protection is because Article
48 distinguishes two kinds of invocation for states other than the injured state. Article 48(1)(a)
talks about the obligation under erga omnes partes whereas Article 48(1)(b) talks about
obligations under erga omnes. Erga Omnes Partes govern obligations of those treaties of which
the states form part i.e. where all the states party to the treaty have an interest in its performance
as well as obligation of fulfillment toward other states. Its is also affirmed that states parties to a
treaty creating erga omnes partes, such as those of humanitarian treaty and disarmament treaty
can strongly claim or invoke the responsibilities other than the states those are members erga
omnes. Some treaties also provide for the common interest, such as Geneva Convention which
obliges the parties to this convention to ensure respect for convention. Non-compliance of treaty
provisions although with no direct injury involved can lead to the invocation of state
responsibility under Article 48(1)(a). This is where Judge Simma seems to confuse between the
application of provisions of Article 48(1)(a) and Article 48(1)(b) in “Congo V Uganda”4 case.
Since both the states were parties to Geneva Convention, African Charter on the human and
people’s Rights, Convention against Torture and International Covenant on Civil and Political
Rights, these all treaties create obligations within certain states to achieve a collective interest.
Thus the obligations here are of Erga Omnes Partes and not of Erga Omnes and can be invoked
only under Article 48(1)(a) and not under Article 48(1)(b).

Beyond Bilateralism
Multilateral obligations in international law are considered as community of states who have
obligations to each other on a bilateral basis. Under Diplomatic Protection, each state has to treat
the nationals of other states with certain standards and can be held responsible by only those
states, whose nationals has been mistreated or injured. With the creation of Article 48(1)(b) ILC
has tried to include other participants for claim other than the injured state and has also
emphasized on collective interests.. State invoking responsibility Erga Omnes does so on behalf
of the whole and in the interest of international community. Even though a claim under Article
48 is invoked for individual’s injury and not direct injury to state, it is to be treated as a direct
claim since the claimant state has direct legal interest in its compliance by the virtue of being a
member of international community, and not as in diplomatic protection through the bond of
nationality. This is to say, a state invoking Erga Omnes is invoking its own right, a right it shares
with other states. invocation. Although this is sometimes a subtle distinction, it may be clarified
by the example of the prohibition on torture. A violation of this prohibition may be claimed
either by exercising diplomatic protection on behalf of a national or erga omnes. In the former
case, the rights that are claimed are rights that are not primarily owed to the claimant State.
Although the claimant State may have agreed with the defendant State not to practice torture, the
obligation not to subject individuals to torture is owed to the individual (foreign) nationals and
this is the right that is claimed. It is an indirect claim and the customary rules for such a claim
apply. If the claim is brought erga omnes, the obligation is owed to the international community,
including the claimant State, which makes it a direct claim. This in turn ensures the non-
application of the traditional requirements of diplomatic protection. Judge Simma, then, was

4
ibid
correct in saying that diplomatic protection is not the only means for invoking responsibility in
such instances

CONCLUSION
In conclusion, the only situation the two mechanisms share are instances of serious breaches of
peremptory norms affecting individuals who have another nationality of the host state or who are
dual nationals, refugees of a third country or stateless persons. From the above observations, it is
clear that rights claimed under Erga Omnes are direct claims since state is invoking those rights
as a member of international community, and that right is owed to the community, including the
claimant state whereas states invoking diplomatic protection are not claiming their own rights
but rights of their individuals. Also, state exercising Erga Omnes have legal standing since they
are invoking direct legal interest whereas in the case of diplomatic protection states have indirect
legal interest and depends mostly upon the bond of nationality. Although diplomatic protection ia
good mechanism to protect individuals but in practice, it is easier for a state to invoke
responsibility when it concern nationals of their state because of the fear of national political
repercussions if they refuse to do so. Sometimes, state is reluctant to exercise their protection of
individuals because of the fear of exploitation of its bilateral ties with that state, in such
situations invocation of Article 48(1)(b) of satte responsibility erga Omnes comes in handy
because it does not emphasises on individual compensation and bilateral relations but the
multilateral concern with the situation and the desire to bring it to an end.