Volume 1 Page 3 OF V I RGI N I A. Essay. State-to-State Espousal of Human Rights Claims. David J. Bederman

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1 VIRGINIA JOURNAL OF INTERNATIONAL LAW ONLINE Volume 1 Page 3 U N I V E R S I T Y OF V I RGI N I A 1819 Essay State-to-State Espousal of Human Rights Claims David J. Bederman 2011 by the Virginia Journal of International Law Association. For reprint permissions, see

2 ESSAY State-to-State Espousal of Human Rights Claims DAVID J. BEDERMAN * INTRODUCTION 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. 1 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 * K. H. Gyr Professor in Private International Law, Emory University. This Essay was prepared in conjunction with the Twenty-Third Annual Sokol Colloquium on Private International Law, April 6, My thanks to Ronald J. Bettauer for his kind advice on this topic. 1. Richard B. Lillich, Commentary, The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law Under Attack, 69 AM. J. INT L L. 359, 359 (1975).

3 4 VIRGINIA JOURNAL OF INTERNATIONAL LAW ONLINE [Vol. 1:3 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. I. TRADITIONAL THEORIES OF ESPOUSAL AND DIPLOMATIC PROTECTION The traditional theory of diplomatic protection has a long and distinguished pedigree, dating back to Emmerich de Vattel s 1758 classic Le Droit des Gens (The Law of Nations), as transmitted to us via Edwin M. Borchard s 1915 work, The Diplomatic Protections of Citizens Abroad. 2 The International Court of Justice, its predecessor, and other international arbitral tribunals have confirmed the contours of the diplomatic protection doctrine in a variety of decisions. 3 The basic canons of diplomatic protection and the espousal of claims are as follows: (1) An offense to an individual, resident in a foreign country, is really an offense against that individual s state of nationality. There must thus be a link of nationality between the offended individual and the state espousing the claim. Usually the requirement is that there must be continuous nationality 2. Borchard s debt to Vattel is made clear in his work. See EDWIN M. BORCHARD, THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD OR THE LAW OF INTERNATIONAL CLAIMS 351 (1915) (citing 2 EMER DE VATTEL, THE LAW OF NATIONS 161 (Joseph Chitty & Edward Ingraham eds., T. & J.W. Johnson & Co. 1883) (1758)). For a modern translation of these passages, see EMER DE VATTEL, THE LAW OF NATIONS 298 (Béla Kapossy & Richard Whatmore, eds., 2008) (1758). For more on the traditional theory of diplomatic protection, see generally Rep. of the Int l Law Comm n, 58th Sess, May 1 June 9, July 3 Aug. 11, 2006, at 24 28, U.N. Doc. A/61/10; GAOR, 61st Sess., Supp. No. 10 (2006); Special Rapporteur on Diplomatic Protection, Seventh Report on Diplomatic Protection, Int l Law Comm n, at 3, U.N. Doc. A/CN.4/567 (Mar. 7, 2006) (by John Dugard); Special Rapporteur on Diplomatic Protection, First Report on Diplomatic Protection, Int l Law Comm n, at 22 27, U.N. Doc. A/CN.4/506 (Mar. 7, 2000) (by John Dugard); Jan Hostie, A Systematic Inquiry into the Principles of International Law Dealing with Diplomatic Protection, 19 TUL. L. REV. 79 (1944); Maximilian Koessler, Government Espousal of Private Claims Before International Tribunals, 13 U. CHI. L. REV. 180 (1946); Myres S. McDougal et al., The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights, 70 AM. J. INT L L. 432 (1976). 3. See, e.g., Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1964 I.C.J. 43 (Feb. 5); Panevezys-Saldutiskis Ry. (Est. v. Lith.), 1939 P.C.I.J. (ser. A/B) No. 76, at 16 (Feb. 28) ( [B]y resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law. ); Mavrommatis Palestine Concession (Greece v. U.K.), 1924 P.C.I.J. (ser. A) No. 2, at 12 (Aug. 30) ( Once a state has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the state is the sole claimant. ); Admin. Decision No. V (U.S. v. Ger.), 7 R.I.A.A. 119, 152 (U.S. Ger. Mixed Claims Comm n 1924) ( When... a claim is espoused, the nation s absolute right to control it is necessarily exclusive. ).

4 2011] STATE-TO-STATE ESPOUSAL OF HUMAN RIGHTS CLAIMS 5 that is, the offended individual must bear the nationality of the espousing state continuously between the date the claim arises and the date the claim is resolved. The rights of nationals are thus merged with the rights of states. (2) The state owns any claim it espouses on behalf of a national. The state thus has absolute discretion as to whether it will espouse the claim or not, whether it will subsequently settle or compromise the claim, and whether or how it will distribute the proceeds of the claim if it is successful. (3) Diplomatic protection is largely indifferent to human rights claims; it is more concerned with the property interests of a national who is situated in a foreign State. The United States practice accords with these principles, especially the notion of the executive branch s absolute and unreviewable discretion in matters of diplomatic protection. 4 Obviously, these postulates of diplomatic protection seem to conflict outright with some of the fundamental premises of human rights claims, notably the autonomy of the individual to seek redress for injury irrespective of the position of his state of nationality (especially since the perpetrator of most human rights abuses is, usually, the injured individual s own state). But it is worth noting that even the traditional theory of diplomatic protection contained progressive seeds. Vattel spoke of a duty on the part of the individual s state of nationality to seek redress for that individual s personal injuries at the hands of a foreign power or its citizens. 5 And, while he generally minimized the significance of personal injuries being vindicated by diplomatic protection, Borchard did observe that [c]laims arising out of certain torts, of an especially flagrant and serious nature, such as murder, mob violence, etc., are usually pressed at 4. See Chytil v. Powell, 15 F. App x 515, (9th Cir. 2001) (holding that a challenge of a decision to not espouse a claim is unreviewable because of the political question doctrine); Freiberg v. Muskie, 651 F.2d 608, 609 (8th Cir. 1981) (holding that the lower court correctly dismissed the case based on the political question doctrine); State Responsibility for Injuries to Aliens, 1978 DIGEST 1, at (abstracting the unpublished decision in Tesar v. Vance); State Responsibility for Injuries to Aliens: Diplomatic Protection and International Claims, 1973 DIGEST 1, at 332 (asserting that the United States can legally espouse on behalf of a national... a formal claim... without being requested to do so either formally or informally by the aggrieved national. ). See generally Jesse W. Hill & Stevens M. Lucas, Note, The Nature and Extent of Executive Power to Espouse the International Claims of United States Nationals, 7 VAND. J. TRANSNAT L L. 95 (1973) (examining U.S. international claims practice and concluding that the Executive enjoys broad and unchecked power over such matters). 5. See 2 VATTEL, supra note 2, at 298 ( Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign... should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of civil association, which is, safety. ).

5 6 VIRGINIA JOURNAL OF INTERNATIONAL LAW ONLINE [Vol. 1:3 once by the United States and other governments, without requiring the exhaustion of local remedies. 6 That the traditional view of diplomatic protection is so at odds with the human rights revolution in international law that occurred after World War II 7 is what, undoubtedly, motivated Richard Lillich to pen his concerns in His worry was that, in the rush to embrace human rights values, we would discard the traditional doctrine of state-to-state espousal of claims. And, without sufficient international machinery to vindicate human rights claims, those individuals harmed by host states that is, states not of their own nationality could very well be left without a remedy. But, thirty-five years later, it remains to be seen whether espousal of human rights claims is a robust remedy. That can be evaluated by an examination of state practice in this area and then by assessing recent developments that suggest a new right, on the part of individuals, of diplomatic protection by their states of nationality. II. ESPOUSAL OF HUMAN RIGHTS CLAIMS AND A NEW RIGHT TO DIPLOMATIC PROTECTION Two essential elements appear to define a human rights claim for purposes of diplomatic protection. The first, as already noted in passing, 8 is an authentic source for the alleged human rights violation. Aside from those offenses that are readily determined by authoritative human rights instruments such as the 1967 International Covenant on Civil and Political Rights 9 there remain an amorphous class of customary international minimum standards by which a host nation should treat foreigners. 10 Violations under this classification might include a host state s outright discrimination against particular classes of aliens; its failure to protect foreigners especially in circumstances involving civil unrest; a failure to punish offenses against aliens, which is particularly relevant in 6. BORCHARD, supra note 2, at 365. The exhaustion of the local remedies rule typically requires, as a prerequisite for bringing an international claim, that all judicial and administrative remedies available in the host state be exhausted. There are many exceptions to this rule that are otherwise beyond the scope of this essay. For the contours of this doctrine, see generally CHITTHARANJAN FELIX AMERASINGHE, LOCAL REMEDIES IN INTERNATIONAL LAW (2d ed. 2004). For an example of when the United States declined to espouse a claim in the absence of continuous nationality, see International Claims and State Responsibility, DIGEST 8, at (finding that the property takings claims were originally claims of Mexican nationals who later became U.S. citizens). 7. This is illustrated by the shift in emphasis between the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW (1965) (discussing international standards of justice and discrimination claims) and the RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 702, 711 (1987) (emphasizing treaty-based human rights standards). 8. See RESTATEMENT (THIRD) FOREIGN RELATIONS LAW, supra note 7, International Covenant on Civil and Political Rights, Dec. 16, 1966, S. EXEC. DOC. E, 95 2 (1978), 999 U.N.T.S See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW, supra note 7, 711 cmt. b.

6 2011] STATE-TO-STATE ESPOUSAL OF HUMAN RIGHTS CLAIMS 7 mob situations; and, somewhat more controversially, a failure to provide aliens with a legal remedy for redress of torts a failure more commonly known as a denial of justice. 11 But merely finding a legitimate legal source for a human rights violation is insufficient. In Edwin Borchard s words, the violation is usually of substantial gravity especially flagrant and serious 12 in order to notionally qualify for espousal. These standards for the exercise of diplomatic protection for human rights claims seem to be borne out in recent U.S. practice. The United States has, since the mid-1960s, very rarely availed itself of the right to espouse a national s human rights claim. The incidents that gave rise to such state-to-state espousals include the deaths or injuries arising from the 1967 sinking of the USS Liberty by Israel and from the 1987 Iraqi attack on the USS Stark. 13 In a similar fashion, the United States espoused a claim on behalf of the families of Orlando Letalier and Ronni Moffitt, who were assassinated in September 1976 in Washington, D.C., and an ex gratia payment was made by the Chilean government pursuant to the decision of an arbitral commission. 14 The United States also espoused, in September 1995, the claims of Hugo Princz and other U.S. nationals who were subjected to detention in Nazi death camps before and during World War II. 15 And, most recently, the United States exercised diplomatic protection of human rights claims in August and October 2008 when it espoused the claims of U.S. nationals injured by the terrorist acts of the Libyan government. 16 Both the German and Libyan espousals resulted in lump- 11. See Robert C. Kelso, Espousal: Its Use in International Law, 1 ARIZ. J. INT L & COMP. L. 233, 236 (1982); Philip M. Moremen, Private Rights of Action to Enforce Rules of International Regimes, 79 TEMP. L. REV. 1127, (2006). See generally JAN PAULSSON, DENIALS OF JUSTICE IN INTERNATIONAL LAW (2005) (examining the doctrinal evolution and modern forms of denial-of-justice claims in international law). 12. BORCHARD, supra note 2, at State Responsibility for Injuries to Aliens: Damages for Wrongful Death, 2 Nash (Leach) DIGEST, at The United States has espoused claims on a few other occasions. It presented a claim arising from the shoot-down of Korean Airlines Flight 007 in September 1983, but the Soviet Union refused to accept the claim. See id. at Additionally, the United States espoused a claim against Belarus arising from a September 1995 shoot-down of a gas balloon piloted by two U.S. citizens. See International Claims and State Responsibility, , supra note 6, at The United States further contemplated an espousal of claims of U.S. airmen (and their families) arising from a collision between a U.S. Air Force C-141 Starlifter aircraft and a German aircraft off the coast of Namibia in See W. Michael Reisman & Robert D. Sloane, Commentary, The Incident at Cavalese and Strategic Compensation, 94 AM. J. INT L L. 505, (2000). 14. See International Claims and State Responsibility, supra note 6, at In contrast, the United States refused to espouse a claim by Scott Nelson against the Kingdom of Saudi Arabia, arising from his 1984 detention and torture in that country. See Saudi Arabia v. Nelson, 507 U.S. 349, (1993); Brief of Respondent at 9 n.9, id. (No ), 1992 WL See Immunities and Related Issues: Sovereign Immunity, DIGEST 10, at See Exec. Order No. 13,477, 73 Fed. Reg. 65,965 (Nov. 5, 2008) (explaining that the claims of U.S. nationals coming within the terms of the U.S. Libyan Claims Settlement Agreement of August 14, 2008, are espoused by the United States ); see also FOREIGN CLAIMS SETTLEMENT COMM N OF THE U.S., U.S. DEP T OF JUSTICE, 2009 ANNUAL REPORT 8 10 (2010) [hereinafter 2009 FCSC ANN.

7 8 VIRGINIA JOURNAL OF INTERNATIONAL LAW ONLINE [Vol. 1:3 sum payments by those governments to the United States, which, in turn, were (or are being) distributed under the authority of the Foreign Claims Settlement Commission. 17 If the United States practice of espousals of human rights claims is indicative of wider trends and I believe that it is it means that diplomatic protection continues to exert a limited influence in vindicating certain kinds of death and personal injury claims. Clearly, the United States will only invoke the right of espousal in well-defined situations that accord with Borchard s formula of flagrant and serious violations of human rights norms. And, at the same time that we are seeing this limited role for espousal in human rights claims, a related trend in support of a notional right for individuals to demand that their state of nationality espouse their claims against another country and compensate them for their claims is becoming apparent. I say apparent because mixed signals on this subject have been sent from both international and domestic bodies. Among international sources, a few seem to articulate a right to espousal. Article 23 of the 1990 International Convention on the Protection of Migrant Workers enshrines such a right. 18 Furthermore, a 1994 decision of the European Court of Human Rights, Beaumartin v. France, 19 held that the extended length of the French proceedings to distribute a lump-sum settlement from Morocco for property losses violated Article 6(1) of the European Convention. 20 Yet, despite these developments, attempts to codify such a right into the International Law Commission s 2006 Draft Articles on Diplomatic Protection were a notable failure. 21 Instead, the Draft Articles contain a hortatory provision (labeled Recommended Practice ): A State entitled to exercise diplomatic protection according to the present draft articles, should: REP.], available at (last visited Jan. 14, 2011). 17. See 2009 FCSC ANN. REP., supra note 16, at 10 16, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 23, opened for signature Dec. 18, 1990, 2220 U.N.T.S. 93 (entered into force July 1, 2003) ( Migrant workers and members of their families shall have the right to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin... whenever the rights recognized in the present Convention are impaired. ) Eur. Ct. H.R. 485 (Nov. 24, 1994). 20. Id. paras (indicating that France afforded diplomatic protection to its nationals and was thus obliged to distribute compensation within a reasonable time by an independent... tribunal within the meaning of Article 6(1) of the European Convention on Human Rights). 21. See Special Rapporteur on Diplomatic Protection, First Report on Diplomatic Protection, supra note 2, at (explaining that draft Article 4 provided that, [u]nless the injured person is able to bring a claim for such injury before a competent international court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State, although this obligation is relieved if the exercise of diplomatic protection would seriously endanger the overriding interests of the State and/or its people ). This provision was later dropped. See Special Rapporteur on Diplomatic Protection, Seventh Report on Diplomatic Protection, supra note 2, at

8 2011] STATE-TO-STATE ESPOUSAL OF HUMAN RIGHTS CLAIMS 9 (a) Give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred; (b) Take into account, wherever feasible, the views of injured persons with regard to diplomatic protection and the reparation to be sought; and (c) Transfer to the injured person any compensation obtained for the injury from the responsible State subject to any reasonable deductions. 22 Likewise, a handful of foreign courts have examined whether individuals have a constitutional right to have their claims espoused by their government. 23 For example, Germany s Federal Constitutional Court declined to take further steps to secure the release of Rudolph Hess, a Third Reich member who had entered Britain in a unilateral attempt to secure peace between Germany and Britain. The court concluded that, while the state had an obligation to provide diplomatic assistance to its nationals, the government had wide discretion in choosing how to fulfill this obligation. 24 While none of these decisions holds in favor of an unqualified individual right to diplomatic protection, each whittles away at the notion that decisions of a government s executive branch to grant or deny espousal are unreviewable by that nation s courts. The overall impression from both the international and domestic sources is that a right to espousal of any individual claim much less a human rights claim remains inchoate, even though municipal courts may have increased 22. See Rep. of the Int l Law Comm n, supra note 2, at 21 (providing text of Draft Article 19 on diplomatic protection); see also id. at (providing commentary on Draft Article 19 on Diplomatic Protection and indicating that [i]t is by no means clear that State practice accords with the draft provision); Annemarieke Vermeer-Künzli, Restricting Discretion: Judicial Review of Diplomatic Protection, 75 NORDIC J. INT L L. 279, (2006). 23. See, e.g., Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Dec. 16, 1980, ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BVERFGE] 55,349 (Ger.), translated in 90 I.L.R. 386 (1980); Kaunda v. President of the Republic of South Africa 2004(10) BCLR 1009 (CC) at paras , paras (S. Afr.), reprinted in 44 I.L.M. 173, 179, (rejecting right to espousal under customary international law for fifteen South Africans captured as mercenaries in Zimbabwe, but finding that they had a right under their Constitution to request espousal and to have the request considered and responded to appropriately ); R (on the application of Abbasi) v. Sec y of State for Foreign & Commonwealth Affairs, [2002] EWCA (Civ) 1598, [80], [2002] All E.R. (D) 70 (Nov) (Eng.), reprinted in 126 I.L.M. 685, 718 (2002) (indicating that, while there existed no duty to afford diplomatic protection for a British national captured by U.S. forces in Afghanistan and transported to Guantánamo Bay, government decisions will be reviewed if irrational or contrary to legitimate expectations); see also Vermeer-Künzli, supra note 22, at Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Dec. 16, 1980, ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BVERFGE] 55,349 (Ger.), translated in 90 I.L.R. 386 (1980)

9 10 VIRGINIA JOURNAL OF INTERNATIONAL LAW ONLINE [Vol. 1:3 powers to ensure that executive branch discretion to withhold espousal is not abused. III. UNITED STATES POLICY ON HUMAN RIGHTS ESPOUSALS Why has the United States been reluctant to espouse human rights claims and embrace a right by individuals to insist on diplomatic protection? In part, the reason is constitutional and stems from the executive branch s plenary authority with regard to the conduct of foreign relations, which certainly includes the handling of international claims. 25 But, aside from these constitutional scruples, there are diplomatic considerations. A former State Department Legal Adviser has gone on record acknowledging that State Department decisions with respect to espousal [are] likely to be influenced, not only by the merits of the case, but by the Department s concern for offending a foreign state and creating a potential irritant in its dealings with that state. 26 I think it highly unlikely that executive branch discretion to espouse human rights claims, or to otherwise exercise diplomatic protection, will be successfully cabined by any exogenous means. Such means include any notional assertions of a constitutional right for an individual to insist on diplomatic protection. When such constitutional claims have been framed as a violation of a Fifth Amendment obligation that private property [shall not] be taken for public use, without just compensation, 27 they have been soundly rejected. 28 Nor is there any prospect that courts will utilize any form of judicial review over decisions to reject espousal of claims; the 25. See DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1976, at 438 (Eleanor C. McDowell ed., Department of State Publication 1977) (quoting Fabian A. Kwiatek, Assistant Legal Adviser for Claims, as saying that the President and the Secretary of State have the responsibility to determine the means and the method under which the foreign relations objectives of the Government of the United States are conducted and settled. Such functions are discretionary in nature. ). 26. Foreign Sovereign Immunities Act: Hearing on S. 825 Before the Subcomm. on Courts and Administrative Practice of the S. Comm. on the Judiciary, 103d Cong (1994) (statement of Abraham D. Sofaer, Former Legal Adviser, Dep t of State); see also David J. Bederman, International Law Advocacy and Its Discontents, 2 CHI. J. INT L L. 475, 484 (2001) ( Individual grievances have tended to be subordinated to the greater good of the nation in its pursuit of common foreign policy objectives. ). 27. U.S. CONST. amend. V. 28. See, e.g., Abrahim-Youri v. United States, 139 F.3d 1462 (Fed. Cir. 1997); Belk v. United States, 858 F.2d 706 (Fed. Cir. 1988). But see Gray v. United States, 21 Ct. Cl. 340, , 406 (1886) (noting in dicta of an advisory opinion that for ethical reasons, when property is... sacrificed for the safety and welfare of this country by the settlement process, the claimant has a right to compensation... even if no remedy in the courts or elsewhere be given him. ); Meade v. United States, 2 Ct. Cl. 224, 275 (1866), aff d 76 U.S. (9 Wall.) 691 (1869) (hinting in dicta that the extinguishment of a cause of action may be a compensable taking under the Fifth Amendment). See generally Peter W. Adler, Note, The U.S.-Iran Accords and the Taking Clause of the Fifth Amendment, 68 VA. L. REV. 1537, (1982) (comparing traditional domestic takings doctrine with cases that involve international claims).

10 2011] STATE-TO-STATE ESPOUSAL OF HUMAN RIGHTS CLAIMS 11 rejection of such review on political question grounds is just too firmly engrained in the relevant precedents. 29 Instead, I see the future of U.S. policy in this area as turning on more endogenous and pragmatic factors. The United States will continue to regard espousal of human rights claims as a potential avenue for relief when certain conditions are satisfied. The first, as already discussed, 30 is that claims have substantive merit as reflected in a clear breach of a human rights norm and severe gravity of the harm. But, more than that, diplomatic and political sensitivities will have to be observed. Outside the context of lump-sum settlements (especially with former adversaries of the United States or pariah states), options for a successful espousal may be limited. And success is an important element in the calculus, for there is no point in the United States presenting a claim unless there is a reasonable likelihood that the accused state will offer some sort of redress, whether as an offer to arbitrate or settle. We remain in a transitional stage with the vindication of human rights. The observation applies equally now as it did thirty-five years ago when Richard Lillich made his trenchant remarks on the persistence of diplomatic protection as a mechanism for satisfying such claims. 31 It may be frustrating that we have not evolved further over that period, but, for the time being, we should remain content to see the incremental improvements in state-to-state espousal of human rights claims that this Essay has highlighted. Ultimately, evolving state practice in this realm may realize substantial gains for the practical defense of human rights. 29. See supra note See supra Part II. 31. Lillich, supra note 1, at 359.

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