Shelter from the Storm: Rethinking Diplomatic Protection of Dual Nationals in Modern International Law

I. INTRODUCTION In 2003 and 2004, Canada's foreign policy establishment was rocked by the detention, torture, and, in one case, murder of Canadian citizens by foreign governments. On June 23, 2003, Iranian authorities arrested Zahra Kazemi, a fifty-four year-old photojournalist with dual Canadian-Iranian nationality, in Iran.1 Branded a spy after photographing a local prison, Kazemi was beaten into a coma by her interrogators,2 causing her to suffer a brain hemorrhage.3 She died in Iran just weeks later.4 In response to the resulting protests from Canada, Iran asserted that because Eazemi was born in Iran and remained an Iranian national under Iranian law, Canada had no business intervening in the affair.5 Hard on the heels of the Kazemi case, at the beginning of October 2003, Canadian citizen Maher Arar returned to Canada, after being detained in a Syrian military prison for more than a year on unsupported terrorism suspicions.6 In 2002 Arar, a dual Canadian-Syrian national, was returning to Canada, via the United States, from a holiday in Tunisia. U.S. authorities arrested Arar during his stopover in New York on suspicion of terrorist connections and deported him to Jordan.7 He was then removed (apparently by Jordanian officials) to Syria, the country of his birth.8 While in Syria, Syrian agents allegedly tortured Arar,9 sparking an on-going inquiry by the Canadian government into Canada's role in Arar's deportation from the United States.10 At least one former U.S. government official has defended the U.S. deportation as proper, arguing that the United States was free to deport Arar to any state of which he was a citizen, including Syria.11 One Canadian official noted, however, that during Arar's detention in Syria, the Syrian government was not obligated to permit Canadian consular officials to visit him.12 These two cases-as well as the case of dual Canadian-U.K. citizen William Sampson, who was detained and tortured for two and one-half years in Saudi Arabia13-have sparked enormous controversy in Canada. Commentators have repeatedly cited these cases as new evidence of Canada's flagging influence in the international community and the failure of its soft power foreign policy.14 More broadly, however, the Kazemi and Arar cases raise another issue. Both Kazemi and Arar were dual nationals, which is at least part of the reason they were vulnerable to abuses by Iran and Syria respectively. Their plights therefore raise the question: Can a government adequately protect its citizens who are also dual nationals of other countries? Some observers have concluded that, as a practical, matter, the answer to this question is no,15 and that dual nationals from all but the most powerful countries are without protection while visiting the states from which they may have emigrated years before. The legal response to the question, however, is fraught with greater ambiguity. This Article discusses what, if anything, states may do to protect dual nationals under international law. To this end, Part II examines international legal rules concerning the treatment of aliens and the concept of diplomatic protection, focusing on state espousal of claims stemming from injuries inflicted on nationals. Part III next explores the evolution of the concept of nationality at international law, focusing on the notion of nationality. Part IV then analyzes how these rules of protection and effective nationality apply to dual nationals. This Article concludes that traditional interpretations of international law favor a non-resporisibility doctrine, which bars a state from asserting protection on behalf of a citizen against states whose nationality that person also possesses. Despite this conclusion, customary international law is not now (and arguably never was) so restrictive. Instead, current international law permits a state to espouse claims against an injuring state so long as the injured person has a better claim to the effective nationality of the espousing state. …

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