The globalization of nationality.

Exposición del profesor Francisco Orrego Vicuña en la sesión inaugural de la Conferencia sobre "La nacionalidad y las reclamaciones en los tratados sobre inversiones", realizada en el British lnstitute of International and Comparative Law, Londres, 6 de mayo de 2005.

Among the many startling features of contemporary international society, that concerning nationality in the context of international claims is particularly noticeable. This Conference is a most timely effort at discerning trends and issues that at first sight may appear intriguing, but which are in fact the outcome of the globalization of human endeavours, particularly in the fields of trade and investment.

The essence of the evolution taking place since the 1950's, is that step by step nationality has followed a process of de-linking from the nation State so as to become an element of interconnection with the framework governing the activities concerned. As that framework is now global for the most, so too nationality responds to the rights and obligations of individuals under international law. Contradictory as it may appear, nationality in respect of those activities is no longer exclusively national but also global.

This process began with a rather simple but fundamental question concerning whose rights are asserted in international claims. The Permanent Court of International Justice had well laid down the rule characterizing an inter-State system of international law when it held in the Mavrommatis Concessions case that by taking up the case of one of its subjects the State was in reality asserting its own rights. It was the time of classic diplomatic protection and its discretionary espousal of claims and the disposition of compensation by the State.

The inherent legal contradictions embodied in this approach and the political use of diplomatic protection as an instrument of power politics had been noted since the very outset, as we have recently been reminded by the work of the International Law Commission and the International Law Association on this matter. The Calvo Clause, aiming at eliminating the role of diplomatic protection and replacing it by the resort to domestic courts, was a first major reaction against this situation.

There was, however, a different kind of reaction in line with the requirements of the international legal system. This was the view that in protecting their nationals States were not asserting their own rights but those of the injured...