175 / 532
159
RETHINKING THE ILC DRAFT ARTICLES ON DIPLOMATIC PROTECTION…
the GA in 2016 (A/RES/68/113 for diplomatic protection and A/RES/68/104 for
State responsibility). Nevertheless a significant difference remains. The preparation
of the Draft Articles on Diplomatic Protection lasted nine years (1997-2006), but
the preparation of the Draft Articles on Responsibility of States for Internationally
Wrongful Acts took nearly half a century (47 years), including also certain pauses – it
was finished in 2001.
It is hardly imaginable that the topic of diplomatic protection as a specific sub-
topic of this theme of State responsibility (according of the Commission’s view)
could be treated by the GA earlier than the intrinsic Draft Articles on Responsibility
of States for Internationally Wrongful Acts, this concerning a central institution of
the system of public international law, although some voices had been calling for
the conclusion of a convention.
1
Since 2001 the GA has dealt with this draft of
State responsibility fourth times, every three years – in 2004, 2007, 2010, and 2013,
without reaching consensus even on the final form of these articles.
2. Activities of the first Special Rapporteur M. Bennouna
In 1997 the Commission appointed Mr. Mohamed Bennouna (Morocco) as
Special Rapporteur for the topic of diplomatic protection. He was only able to
present the first report as a preliminary written account,
2
because he in 1998 was
elected a judge of the International Criminal Tribunal for the former Yugoslavia.
In his report he has in essence recapitulated the Working Group’s proposals,
3
this
group (the Commission’s working group) being established by the Commission
to examine the topic in general outline and to indicate its scope and content.
4
It
refers to the Mavrommatis judgement, which states: “It is an elementary principle
of international law that a State is entitled to protect its subjects, when injured by
acts contrary to international law committed by another State, from whom they have
been unable to obtain satisfaction through the ordinary channels”.
5
This ‘principle’
was contemplated very early on since reference is often made to the first theoreticians
of international law, particularly Vattel.
6
While in the actual exercise of diplomatic
protection the State retains choice of means, it still needs to be determined on which
right the State’s action is based, its own right or that of the individual. The answer to
this question determines the legal nature of diplomatic protection.
1
Cf.
A/CN.4/561, p. 51: Comments on final form. Norway, on behalf of the Nordic countries (Denmark,
Finland, Iceland, Norway and Sweden). (…) the Nordic countries do also believe that the provisions
on diplomatic protection should,
in a relatively short time, be adopted in the form of a Convention
(italics
added). This would enhance legal clarity and predictability in this important field of law.
2
Cf.
UN Doc. A/CN. 4/484.
3
In: Report of the Working Group (M Bennouna – Chairman), UN Doc. A /CN.4/L.537, 1997.
4
The most respected members of this Working Group were: I. Brownlie, J. Crawford, G. Hafner, I.
Lukashuk, R. Rosenstock, B. Simma
et al
.
5
Cf.
P.C.I.J., Series A, No. 2, judgment of 30 August 1924. p. 12.
6
Cf. E. de Vattel,
Le droit des gens ou les principes de la loi naturelle
, London, 1758, vol. I, book II,
p. 309, par. 71, in The Classics of International Law (Washington D. C., Carnegie Institution of
Washington, 1916).