179 / 532
163
RETHINKING THE ILC DRAFT ARTICLES ON DIPLOMATIC PROTECTION…
articles),
22
a fiction is used that diplomatic protection involves an invocation – at
the State level – by a State of the responsibility of another State for an injury caused
by an internationally wrongful act of that State to a national of the former State.
Already questionable is the said fiction in connection with the possible change of
the nationality of the private person; then the exercise of diplomatic protection is
permitted only in the situation of the continuous nationality of that person.
23
But
the invocation by a State of the responsibility of another State for an injury caused
by an internationally wrongful act of that State is possible even at the moment of
commission of this internationally wrongful act.
While the ILC in its Draft Articles on Diplomatic Protection acknowledged the
legal fiction, it continues to be the subject of debate and criticism.
24
4. Comments and observations by States
The attitude of States is usually considered as decisive for the destiny of the
appropriate ILC’s draft. As far as diplomatic protection is concerned, approaching
26 January 2006 (the deadline was 1 January 2006), written comments had been
received from only 11 States.
25
These States either approve the approach adopted by
the Commission or do not comment on the legal nature of diplomatic protection
at all (the United States). The following observations are just for illustration. “The
United Kingdom (a common law country) reiterates its support for the work of the
International Law Commission on Diplomatic Protection. There exists a large body
of well established State practice on much of the subject matter of the draft articles.
The United Kingdom welcomes the Commission’s characterization of diplomatic
protection as a right of the State that the State is under no obligation to exercise. We
agree that every State retains the discretion, subject to its internal laws, as to how this
right of diplomatic protection is exercised, if at all.”
26
“The Government of Italy (a
typical civil law country) believes that Draft Article 1, in giving a definition of the
concept of ‘diplomatic protection’ and of its scope of application, adopts a wording
which is too traditional, especially when it speaks of a State ‘adopting in its own right
22
Cf.
Art. 2 of the pertinent Draft. In this connection it is also emphasized “the discretionary nature of
the State’s right to exercise diplomatic protection”, see par. 3 of the commentary to Article 19 devoted
to “Recommended practice” which has not yet acquired the status of customary rules and which is not
susceptible to transformation into rules of law in the exercise of progressive development of the law.
23
Cf.
Art. 5 – Continuous nationality of a natural person – 1. “A State is entitled to exercise diplomatic
protection in respect of a person who was a national of that State continuously from the date of injury
to the date of the official presentation of the claim (…).”
24
Cf. e.g.
Vermeer-Künzli,
A.
As If: The Legal Fiction in Diplomatic Protection.
The European Journal of
International Law
, EJIL, Vol. 18, no. 1, 2007, p. 38.
25
Cf.
It concerns: Austria, El Salvador, Guatemala, Mexico, Morocco, the Netherlands, Norway (on
behalf of the Nordic countries Denmark, Finland, Iceland, Norway and Sweden), Panama, Qatar, the
United States of America and Uzbekistan. In addition Belgium, the United Kingdom of Great Britain,
Italy and Kuwait. In all, 15 States. See UN Doc. A/CN.4/561, A/CN.4/561/Add.1 and A/CN.4/561/
Add.2. The UN has 193 member-States (2014). Also the Czech Republic ignored it.
26
Cf.
A/CN.4/561/Add.1, p. 4.