Diplomatic protection is where the home state intervenes on behalf of its nationals who suffer a violation of international law by the host state. In this case the home state acts on its own account as it is considered to be the injured party. The foundations of diplomatic protection were explained in 1924 by the Permanent Court of International Justice in the Mavrommatis case.
Three criteria must be in place for a state to extend its diplomatic protection:
- the proper nationality of the injured party
- a breach of international law by the host state
- exhaustion of local remedies
Conditions for diplomatic protection
A state is entirely free to extend or to refuse diplomatic protection. International law places no obligation on a state to extend diplomatic protection to its nationals. There is no norm of Swiss law which gives its nationals a personal and subjective right to diplomatic protection. It is the Federal Council that has the authority to grant diplomatic protection. The sole restriction on its discretionary powers is the prohibition on the arbitrary use of power. The Federal Supreme Court jurisprudence recognises the possibility of contesting a refusal to grant diplomatic protection Federal Supreme Court decision 130 I 312, p. 317 s).
Federal Council discussion of diplomatic protection and the prohibition of arbitrariness (fr)
The International Law Commission on diplomatic protection