Vom diplomatischen Schutz zum Recht der Investitionsschutzabkommen: Offene Fragen und alternative Wege beim Auslandsschutz privater Vermögensinteressen

The legal instrument of diplomatic protection used to be the only means for an individual to recover damages that had been caused by the unlawful act of a foreign state. In its traditional shape as determined by the PCIJ in the famous Mavrommatis case, the right to diplomatic protection was conceived principally, but not exclusively as a right of the state of origin that was entitled to invoke it on behalf of its national who had suffered the damage. Today, however, the legal position of the individual itself obtains more and more attention, while its relationship to the right of the state remains still unclear. This double legal foundation entails a number of questions that arise in particular under the conditions of modern international law that leaves alternative ways to the individual to recover its damages. The modern law of human rights as well as the law of investment protection have created legal claims for the individual against the host state which concur with the traditional right to diplomatic protection. In case that following negotiations with the host state and the conclusion of a treaty granting an overall compensation for damages suffered by the individuals the state of origin has waived the claim for damages, the question arises whether the individual can still uphold a claim under the human rights or investment treaty. It is of particular interest in cases in which the host state is not able to influence the fate of the claims by simply adapting its own domestic law because the legal order of either the state of origin or a third state is involved. In modern legal doctrine, it is sometimes argued that the right in question is a single one which belongs to the individual but would be lost for him when his state takes over the claim. Although this approach seems to grant the individual a position on equal footing with the states, it in fact diminishes his rights. It is therefore argued that a clear differentiation between the waiver of the state of origin and the substantive right of the individual is preferable so as to enable the latter to file a claim for damages even if the state of origin has renounced to its right of diplomatic protection. Irrespective of that, the development of the law of investment protection provides for more clear-cut solutions in an area of law that throughout the centuries has proved to be a source of legal quarrel and uncertainty. The traditional law of diplomatic protection, however, remains a relevant means of individual defence where more specific legal rules do not apply.