The theme of the protection of the state’s nationals abroad may have seemed a bit passé but is now witnessing a resurgence. It raises questions about the nature of the obligations that states owe to their extraterritorial nationals. The commentary explores the origins of that regime in the international law of protection of aliens, tainted as it was by its association with imperialism, as well as its decline as it was gradually supplanted by an emphasis on the distinct regimes of human rights and investment protection. It nonetheless argues that protection of nationals abroad is witnessing a renewal as states in the Global South increasingly become concerned with the fate of their nationals in the Global North and as international human rights law turns out not to have provided the full protection one might have expected. To understand that renewal, however, one must also understand it as a metamorphosis, involving modifications in the scope of protection provided, beyond the traditional focus on diplomatic protection; a shift away from the emphasis on isolated ‘aliens’ to the protection of entire and amorphous ‘diasporas’; and the emergence of powerful rights discourses that foreground the obligations of the state of origin to its nationals rather than exclusively of the territorial state to foreigners. Together, these mutations add up to a significant, if occasionally troubling, phenomenon that remains ill-accounted for in the international legal literature.

Frédéric Mégret, The Changing Face of Protection of the State’s Nationals Abroad, Melbourne Journal of International Law, 2021.