Building Myanmar’s International Responsibility before the ICJ by Recourse to Diplomatic Protection

Darío Maestro, LL.M. Student at the University of Michigan Law School.

A core premise of international refugee law is that an individual’s state is either persecuting him or her or is unable or unwilling to protect them from persecution.[1] As the 1951 Refugee Convention states, someone who is unable or unwilling to stay in their state of origin because of attacks may be given a dignified legal status as he or she enters a neighboring country. While the harm refugees in their state of origin is certain, the remedies for them in another state are not. The unfortunate reality is that international law does not hold accountable the many governments which deliberately embark in actions that force their citizens to flee to another country. This is because, in many instances, human rights claims cannot be brought against the persecuting states because national and international courts may lack jurisdiction of the persecuting states.

The plight of the Rohingya, pressing humanitarian crisis, illustrates this problem. Between 2012 and 2018, the military and security forces in Myanmar have systematically targeted the Rohingya for arbitrary detention, torture and inhumane treatment, and extrajudicial killings. As a result, over a million Rohingya (as of recent estimates) have sought refuge in nearby countries—particularly in Bangladesh, but also in Malaysia, Thailand, and Indonesia—to escape the acute persecution. Myanmar’s legal accountability for the protection of human rights is very restricted: the state is not a party to the central binding human rights treaties—the ICCPR and the ICESCR—nor any regional human rights treaty body. A Rohingya person fleeing persecution in Myanmar would be unable to invoke the responsibility of the Mynamar, and thus will have no access to remedies for Myanmar’s persecutory acts. While her host state—likely, Bangladesh—will have to bear the burden on its own, the behavior of the sending state will not be held accountable under international law, allowing the persecution to continue.

In summary, where states have not signed human rights treaties, even if the state violates basic human rights, it will not be held accountable for these abuses under international law — either by the refugees or their host states. Under these circumstances, there is a need for a mechanism that would give these actors an opportunity to respond to such scenarios—to help rebuild refugees’ lives and alleviate the burden born by host states—rather than to resign themselves to the accountability gap. Exercising diplomatic protection by host states on behalf of their refugees against their state of nationality is one such mechanism.  Institutionalizing the right of a host state to make its case for a remedial solution before an international court, like the ICJ, would also help counter refugees’ limited access to justice for their country of origin’s actions.

A court must have jurisdiction, and the state must have standing, in order for the host state to hold the refugees’ state of origin responsible for causing refugee flows into its country, before an international court. My focus will be on standing, since my goal here is to assess whether Bangladesh has the right to invoke its diplomatic protection for attacks directed against its refugee population. The court must have jurisdiction first to determine whether the state has standing.

Jurisdiction: The Crime of Genocide

The Rohingya case touches a sensitive and important area of human rights: ethnic cleansing. Myanmar is depriving the Rohingya of rights which are basic to the perpetuation of the group in an attempt to rid the country of them. This follows Myanmar’s historical refusal to acknowledge the Rohingya’s ethnic identity, which at the very least is rooted in the Citizenship Law was introduced in 1982. For years, Myanmar has made it almost impossible for Rohingya to prove their existence and historical roots in Myanmar; now the state is actively destroying Rohingya land and starving them. One may assert then that Myanmar state actions could result in a finding of genocide by the ICJ.

Because of Bangladesh’s and Myanmar’s mutual consent to the jurisdiction of ICJ—pursuant to the compromissory clause of Article 9 of the Genocide Convention—Bangladesh could invite the Court to exercise jurisdiction over the Rohingya crisis.

Even if the Court were the best forum for these genocide claims, it is still necessary to prove a special interest of Bangladesh in the dispute itself; otherwise, the Court will be less likely to grant standing. While the ICJ has recognized that every state has a legal interest in protecting erga omnes obligations, [2] it opposes recognizing standing to any state on these grounds. As explained by Judge Stephen M. Schwebel, the Court regards the crime of genocide as supremely immoral and unlawful and is conferred the character of obligation erga omnes.[3] Notwithstanding, the Court has never found standing by the sole means of an obligation erga omnes. In the South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) cases, the Court effectively rejected standing based on a breach of an obligation erga omnes. Therefore, diplomatic protection will provide a relatively pertinent forum for host states like Bangladesh to validate the special relationship between the state and the affected individuals.

Standing: The Right to Invoke Responsibility through Diplomatic Protection

Diplomatic protection refers to the procedure employed by states to secure protection of their nationals abroad.[4] In 1758, the Swiss jurist Emmerich de Vattel made an important statement that would mark the traditional concept of diplomatic protection: “whoever ill-treats a citizen indirectly injures the State, which must protect that citizen.”[5] Indeed, diplomatic protection has traditionally been a state right, in the sense that it is left entirely to the state of nationality to decide whether or not to act on behalf of its national. Such an approach, it should be stressed, would fit perfectly into a premature international law framework in which the individual had no place nor rights separate from the state. Regrettably, the court’s holdings still endorse these ideas in the development of the international order.

While states can exercise diplomatic protection on behalf of their nationals, it is largely unprecedented to seek remedies before international tribunals on behalf of refugees they are hosting. Expressly excluded from the means of the ILC’s Articles on Diplomatic Protection, it is the utilization of the principle by the applicant state to espouse claims on behalf of refugees against their state of nationality in light of internationally wrongful acts.[6] This limitation does not matter here because the above mentioned compromissory clause provides a means for ICJ jurisdiction.[7] In concert with the recognition of refugee status, diplomatic protection could thus give Bangladesh standing to invoke before the ICJ the responsibility of Myanmar for causing large-scale flows of refugees in the wake of a genocide scheme, as their state of nationality refuses to afford them protection. As it will be grouped in the discussion below, this is highly consistent with the principle out in Nottebohm (ICJ) and Article 8(2) of the Articles on Diplomatic Protection.

In presenting the case for extending the application of diplomatic protection of a host state to its refugees, the principle of the “bond of attachment” outlined in the ICJ’s Nottebohm judgment may help define what a sufficient interest in a dispute is and who makes that determination. In this case, Liechtenstein requested the Court to recognize its exercise of diplomatic protection on behalf of Nottebohm—who had recently been granted Liechtenstein citizenship following the end of World War II—in the proceedings against Guatemala. The ICJ observed an insufficient line of attachment between the individual and a state other than off its nationality (Liechtenstein, in this case) and thus found the claim inadmissible. In dicta, however, the Court established that diplomatic protection equals a measure for the defense of the states’ rights. Non-national citizens (like refugees) should thus not be automatically ruled out from the host state assessment of whether to bring a dispute to international courts under the auspices of its own diplomatic protection.

This attachment could be analogous to the state’s hosting of the refugees in its sovereign territory. When a state admits into its territory foreign nationals, it has a duty to afford them the protection of its laws and it assumes obligations relating to their treatment. When a state admits refugees—pursuant to the Refugee Convention,[8] or the customary principle of non-refoulement—that is the only protection that will be granted to the refugee, hence the receiving state work is to reestablish their legal rights which the country of origin dissoluted earlier. If the object of refugee law and human rights is to remedy the failure of state protection,[9] then the new host state should be granted an interest in the international disputes involving their refugee population. This conclusion is strengthened since diplomatic protection may facilitate future access of refugees to international justice and legal remedies.

Using these binding rules of the ICJ, a host state could thus present a strong argument that it has standing, by using diplomatic protection to pursue justice before the international tribunal on behalf of refugees against the persecuting state, filling in the gaps caused by the lack of jurisdiction in international and regional human rights bodies. Given the condition that parties other than nation-states cannot appear before the Court, a case would probably be filed by Bangladesh on behalf of the Rohingya in the situation in which the country had strong incentives such as the following: (1) to bring to an end the long-standing conflicts between the state of nationality and the oppressed minority that is undermining their exercise of territorial jurisdiction; (2) to obtain confirmation of the unlawful conduct incurred by the state of origin; and (3), to request remedies for the victims of displacements which could not be otherwise obtained.

Concluding Remarks

As the current humanitarian crisis in Myanmar has illustrated, there are few remedies in international law against persecuting states. While it would take a bold host state to bring human rights claims under the umbrella of diplomatic protection, this note has attempted to show that such claims would not be unfruitful.

Sovereignty may be a wall here but once host states are aware of, and willing to act on, the deficiencies in their current stance surrounding the persecuting state’s responsibility, it could bring an adversarial suit before an international court, specifically the ICJ. The answer to lacking state responsibility may lie in utilizing diplomatic protection’s pragmatic approach. Diplomatic protection is a necessary factor in this solution in order to allow host states to build the corresponding international responsibility of sending states. It is, nevertheless, not sufficient to bring a dispute of this type before the ICJ if there is no clear jurisdiction basis for it.

It is unrealistic to think that international human rights law can function in such a way that non-nationals will never be in need of the assistance of states other than of its state of nationality. To think otherwise is to expect too much of states and too little of citizens. Remedying the wrongs of human rights violations cannot wait; if it means interpreting another legal principle to make it the vehicle to achieving international justice and vindicating the rights of millions of persecuted persons, then so be it.


[1] See also Jennings RY, ‘Some International Law Aspects of the Refugee Question’ (1939) 20 British Yearbook of International Law 98.

[2] ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spanish) (New Application: 1962), Second Phase, Judgment, I.C.J. Reports (1970), para. 33.

[3]  Schwebel SM, ‘Human Rights in the World Court’ (1991) 24 Vand. J. Transnat’l L., 958 (citing Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports (1951), paras. 15, 23)

[4] Dugard JR, ‘Diplomatic Protection’ 2009 MPEPIL, para. 1

[5] McDougal MS, Lasswell HD and Chen L-C, ‘The Protection of Aliens From Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights’ (1976) 70 American J. of Int’l Law L. 432, 441.

[6] Draft Articles on Diplomatic Protection, UN Doc. A/61/10 (2006), Article 8(3). For length convenience, this article will not deal with the doctrine that conceptualizes the act of displacement of refugees into the host country as an internationally wrongful act, amounting to the violation of the principle of equality. For a discussion on the topic, see: Garry HR, ‘The Right to Compensation and Refugee Flows: A Preventative Mechanism in International Law’ (1998) 10 Int’l J. Refugee L. 102; see also: Lee LT, ‘The Cairo Declaration of Principles of International Law on Compensation to Refugees’ (1993) 87 The American Journal of International Law 157.

[7] Note that only through the compromissory clause contained in the Genocide Convention could Bangladesh initiate these proceedings before the ICJ in the first place. As already cited above, the jurisdiction of the Court shall be verified in advance.

[8] Convention Relating to the Status of Refugees 189 U.N.T.S. 137 (1951), Article 33.

[9] Aleinikoff TA, ‘State-Centered Refugee Law: From Resettlement to Containment’ (1992) 14 Mich. J. Int’l L., at 120.

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