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RETHINKING THE ILC DRAFT ARTICLES ON DIPLOMATIC PROTECTION…
topic. He has been concerned with the legal nature of diplomatic protection since
the beginning,11 in essence continuing on the leading ideas of his predecessors.12
He has since enriched the notion of the legal fiction, this unreality being the focal
point of today’s ILC´s concept of diplomatic protection. “The present Rapporteur
does not share his predecessor’s disdain for fictions in law. Most legal systems have
their fictions. Indeed Roman law relied heavily on procedural fictions in order to
achieve equity.” “We should not dismiss an institution, like diplomatic protection,
(…) simply on the ground that it is premised on a fiction and cannot stand up to
logical scrutiny (sic ).”13 At another place but in the same spirit he observes that “the
present report is more concerned with the utility of the traditional view than its
soundness in logic. (…) The diplomatic protection, albeit premised on a fiction, is an
accepted institution of customary international law (…).”14
But this is just not allowed in legal thinking, meaning to establish a legal institution
based on a fiction. This is given by the notion concerned itself as presented by the legal
literature. A legal fiction is a fact assumed or created by courts, which is then used in
order to apply a legal rule which was not necessarily designed to be used in that way.15
Fictio juris non est ubi veritas (There is no legal fiction where there is truth).16 There is
also an old adage: Fictions arise from the law, and not law from fictions. 17
The said fiction of law was then incorporated in two articles of the Draft Articles
on Diplomatic Protection; this draft had been already that of the Commission
of International Law. The first article determines the invocation by a State of the
responsibility of another State for an injury caused by an internationally wrongful act
of that State to a natural or legal person that is a national of the former State.18 The
injury caused to a private person being a national of another State is here (according
to the Commission’s view) the rationale that the topic of diplomatic protection be
considered as a specific sub-topic of the theme of State responsibility although treated
separately as a independent topic.
11 Cf. First Report on Diplomatic Protection by the Special Rapporteur John R. Dugard, A/CN.4/506
(2000).
12 Cf. UN Doc. A /CN.4/L.537, 1997, and UN Doc. A/CN. 4/484, 1997, doc. cit. supra.
13 Cf. First Report on Diplomatic Protection by the Special Rapporteur John R. Dugard, A/CN.4/506
(2000), par. 21.
14 Cf. ibidem, par. 68.
15 Cf.
16 Cf. Black, H. C. (et al.) Black’s Law Dictionary, 6th edn. St. Paul (Minn): West publishing , 1990:
heading – fiction of law. See also
17 Cf.
18 Cf. Art. 1 – Definition and scope – “For the purposes of the present draft articles, diplomatic protection
consists of the invocation by a State, through diplomatic action or other means of peaceful settlement,
of the responsibility of another State for an injury caused by an internationally wrongful act of that
State to a natural or legal person that is a national of the former State with a view to the implementation
of such responsibility.”