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ČESTMÍR ČEPELKA CYIL 5 ȍ2014Ȏ
the cause of its national’. The wording implies not only that the right of diplomatic
protection belongs only to the State exercising such protection, but also that the
right that has been violated by the internationally wrongful act belongs only to the
same State.(…) The Government of Italy believes that the exercise of diplomatic
protection is, as a rule, a right that belongs only to the State and that international
law does not provide either for a right of the injured individual to obtain diplomatic
protection from its State or for a corresponding duty upon that State.” 27
Only Austria is rather equivocal about the said approach in indicating that the
structure of diplomatic protection as a right of a State has always been discussed — as it
is only a fiction that the State is injured through its nationals (italics added).28 This right
is, however, balanced by the corresponding obligation of the other States to accept such
claims by a State. The question is whether there exists the same situation as according
the responsibility of States for internationally wrongful acts. The term “international
responsibility” covers the new legal relations which arise under (general) international
law by reason of the internationally wrongful act of a State.29 This new legal relation
arises at the moment when the internationally wrongful act is carried out, and so
the possible judgment (award) achieved during a settlement of dispute is only of
declaratory nature because the reparation obligation (the typical aspect of State
responsibility) arises earlier. In the case of the application of diplomatic protection
the situation is different; see below.
The ILC shares this conception currently, and therefore its Draft Articles on
Diplomatic Protection is considered as a specific sub-topic of the theme of State
responsibility. This is also the result of the preference given to the utility which could
serve only as a developement stimulus (progressive development of international law
in this area),30 but gets worse for the codification of customary rules in the most
traditional sense.
5. The legal nature of diplomatic protection
The concept of diplomatic potection is due to the establishment abroad of aliens
and their capital assets. Its extension is then linked to the so-called Jay treaty (1794),31
this treaty introducing the arbitral commissions for the first time.32
27 Cf. A/CN.4/561/Add.2, p. 2.
28 Cf. A/CN.4/561, p. 13.
29 Cf. Report of the International Law Commission, Fifty-third session, 2001, A/56/10, p. 63 (Commentary
to Article 1).
30 Cf. First Report on Diplomatic Protection by the Special Rapporteur Mr. John R. Dugard, A/CN.4/506
(2000), p. 25, par. 68: “The present report is more concerned with the utility of the traditional view
than its soundness in logic.” “(…) diplomatic protection, albeit premised on a fiction, is an accepted
institution of customary international law (…).”
31 Officially: The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The
United States of America (1794); see:
32 In Article VI of the above mentioned Treaty. As yet used the practice of a sole arbitrator has almost
ended.