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Suggested Bluebook citation: David J. Bederman, State-to-State Espousal of Human Rights Claims, 1 Va. J. Int’l L. Online 3 (2011), http://www.vjil.org/articles/state-to-state-espousal-of-human-rights-claims.

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Richard B. Lillich, a long-time member of the University of Virginia School of Law faculty before his death in 1996, famously observed in a 1975 article that, "pending the establishment of international machinery guaranteeing third-party determination of disputes between alien claimants and states, it is in the interest of all international lawyers not only to support the doctrine [of diplomatic protection], but to oppose vigorously any effort to cripple or destroy it." Now, more than a third of a century later, it is worth taking stock of the contemporary contours of the doctrine of diplomatic protection, and to assess whether state-to-state espousal of human rights claims (as distinct from assertions of property rights) is a practice worth cultivating in international relations.

While a variety of "international machinery" has been established to adjudicate property rights claims between foreign nationals and host states in the years since 1975 (via claims settlement instruments and investor-state mechanisms under bilateral investment treaties), this has hardly been the case with personal injury or human rights claims. A number of reasons for this lag come readily to mind. The first is that traditional theories of espousal and diplomatic protection do not sit well with modern human rights doctrine. A second is the problems in defining human rights claims so as to make the claims amenable to diplomatic protection. This has meant that the contemporary practice of state-to-state espousals of human rights claims has been spotty and inconclusive. But, on the other side of the ledger, some recent decisions of regional human rights bodies and domestic courts suggest that an individual "right" to diplomatic protection exists - a rule that would subvert a basic principle of the traditional theory of that doctrine. This Essay will review these developments and then speculate as to whether these recent decisions will affect current U.S. practice for the espousal of human rights claims.