CYIL 2014

162

ČESTMÍR ČEPELKA

CYIL 5 ȍ2014Ȏ

The second article is dedicated to the right to exercise diplomatic protection.

This stipulation is a mere logical supplement of the preceding statement. It is actually

presupposed that the present conception of State responsibility is based on an

obligation not to hinder the reparation of the wrongful act, these legal consequences

being determined by the customary general international law. This means that even

the above mentioned corresponding right is of the same provenience,

i.e.

being of

general international law (

ex lege

Naturally, even in this domain of international law governing the treatment

of aliens it is wholy possible that a stabilized right of a State exists to invoke the

international responsibility of another State and the obligation to implement that

responsibility. This is the situation when the breach of an international obligation by

an act of the State is composed of a series of actions in respect of separate cases and

so establishes the existence of a

composite act.

In other words, it consists of a series of

individual acts of the State succeeding each other in time; that is to say, a sequence

of separate courses of conduct, actions or omissions, adopted in separate cases, but

all contributing to the commission of the aggregate act in question (

fait global en

question

A frequently cited example is the breach of an obligation prohibiting the

State to which it applies from adopting a “discriminatory practice” in regard to the

access of aliens from a particular country to the exercise of an activity or a profession.

As opposed to the above mentioned situation, the following eventuality is quite

different. The pertinent rule refers to it by the ensuing wording. “The breach of an

international obligation by a

complex act

of the State, consisting of a succession of

actions or omissions by the same or different organs of the State in respect of the

same case, occurs at the moment when the last constituent element of that complex

act is accomplished.”

A complex act is not composed of a series of separate individual

acts of the State committed in separate cases. Although it, too, consists of a succession

of courses of conduct, of actions or omissions, by the State, such actions or omissions

(either by the same organ or, more frequently, by different organs) all relate to a single

specific case and, taken as a whole, represent the position taken by the State in that case.

This is just the occasion of applying diplomatic protection. In order that a State

has the right to exercise diplomatic protection (in accordance with the present draft

Cf.

Art. 2 – Right to exercise diplomatic protection – “A State has the right to exercise diplomatic

protection in accordance with the present draft articles.”

Cf.

Doc. A/51/10, Report of the International Law Commission, 1969, Art. 25 – Moment and

duration of the breach of an international obligation by an act of the State extending in time – (2)

“The breach of an international obligation by an act of the State, composed of a series of actions or

omissions in respect of separate cases, occurs at the moment when that action or omission of the series

is accomplished which establishes the existence of the composite act. (…).” See also Doc. A/56/10,

Report of the International Law Commission, 2001, Art. 15 – Breach consisting of a composite act –

(1) “The breach of an international obligation by a State through a series of actions or omissions defined

in aggregate as wrongful, occurs when the action or omission occurs which, taken with the other actions

or omissions, is sufficient to constitute the wrongful act.”

Cf.

Doc. A/51/10, Report of the International Law Commission, 1969, Art. 25(3). The definitive text

of 2001 does not comprise such a rule.