The UK Government decided today to exercise diplomatic protection over Nazanin Zaghari-Ratcliffe, a dual UK-Iranian national imprisoned in Iran (and one of a number of people who have been in such a position over the past few years). In this post I just want to briefly flag a possible evolution in the UK’s legal views on the diplomatic protection of dual nationals by one state of nationality against the other state of nationality. The traditional position was of course that diplomatic protection could not be exercised in such circumstances.
In its 2006 Articles on Diplomatic Protection, the ILC adopted a more flexible rule, which relied on a test of predominant nationality. Article 7 ADP thus provides that ‘A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.’ In the ILC’s view this more flexible rule was one of customary international law, a position embraced by some states but not others (see, e.g., here for an enthusiastic endorsement of the rule by Norway on behalf of Scandinavian states, and a more skeptical position of Japan).
The UK’s position on Article 7 has been as follows (A/CN.4/561/Add.1, p. 7):
Draft article 7 sets out a general rule of international law that a State will not support the claim of a dual national against another State of nationality. The Government of the United Kingdom will not normally take up the claim of a national if the respondent State is the State of second nationality. However, exceptionally, the Government may take up the claim of a person against another State of nationality where the respondent State has, in the circumstances leading to the injury, treated that person as a British national. However, we consider that the test for “predominant nationality” included in draft article 7 requires further clarification.
Now, obviously, it is not easy to argue that Iran has treated Zaghari-Ratcliffe as a British national – in fact Iran rejects the other nationality of its dual nationals, treating them formally as Iranians only, even if clearly many of them are being detained precisely because of their dual nationality. So it seems more likely that Foreign Office is now endorsing more expressly the predominant nationality rule that it was not very keen on when the ILC ADP were being discussed.
In that regard, I would like to flag for readers an opinion that John Dugard, who was the ILC special rapporteur on diplomatic protection, and barristers Tatyana Eatwell and Alison Macdonald have written for Redress on Zaghari-Ratcliffe’s situation, arguing precisely that the UK could exercise diplomatic protection over on the basis that her British nationality was predominant, and explaining how the predominance test was satisfied on the facts. It seems quite possible, if not likely, that the UK government’s views now substantially align with the legal and factual analysis in the Dugard/Eatwell/Macdonald opinion, which is well worth a read.