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RETHINKING THE ILC DRAFT ARTICLES ON DIPLOMATIC PROTECTION…
In the past the reparation duty of an internationally wrongful act was based only
on treaty (ex contractu), its conclusion even sometimes enforced. By virtue of a treaty
(called compromise) an arbitral commission is also appointed, namely in case of dispute
settlement. Its award of a pecuniary shape stipulating liability, a contractual liability,
is but a constitutive act (adjudication) which recognises the legitimacy of the use of
diplomatic protection and determines to make a required payment. By the said award
so emerges an obligation of primary value (being different from responsibility, which
is an institution of secondary nature; see above).33 From the very beginning then the
diplomatic protection is a treaty-based matter. The wrong done abroad to a alien involved
is only a simple (material) interest of his nationality State, not its right. This interest is of
extra-normative significance.34 The State of nationality of the harmed person uses that
intervention discretionally, for this State enjoys complete freedom of action.35
After more than a century (130 years counting from the Jay treaty, 1794) there
is a change. The Permanent Court of International Justice (PCIJ) took care of this in
re Mavrommatis Palestine Concessions, 1924 (Greece v. UK).36 The wrong done to
M. Mavrommatis, a Greek subject,37 caused by the legal fiction of wrongful damage
to the Greek Republic so that the UK shall make reparation for the consequent
loss incurred by the said Greek subject. This reparation is a duty prescribed by
general international law (i.e. resulting ex lege), thus as responsibility of States for
internationally wrongful acts. The same situation was literally repeated in 1939 in re
The Panevezys-Saldutiskis railway case (Estonia v. Lithuania).38 Special Rapporteur
33 See : “The rules of state responsibility determine, in
general, when an obligation has been breached and the legal consequences of that violation. In this way
they are secondary rules that address basic issues of responsibility and remedies available for breach of
primary or substantive rules of international law.”
34 Cf. Rousseau Ch. Droit international public. 5 vols., Paris: Sirey, 1970-1983; vol. V, p. 12: “(…)
la simple lésion d’un intérêt (…) (est) insuffisante pour entraîner l’obligation de réparer.” “(…) seule la
violation d’un droit engendre l’obligation de réparer (sic), à la différence de la simple lésion d’un intérêt
(…).” See also Judgment of Barcelona Traction, Light and Power Company, Limited, Second Phase
(Belgium v. Spain), ICJ Report 1970 (5. 2. 1970), p. 231 (Dissenting opinion, G. Morelli): “These
interests, although contemplated by rules of international law, remain simple interests for the purposes
of the international legal order.”
35 Cf. Barcelona Traction (supra), p. 3, pars. 78-79: “Since the claim of the State is not identical with that
of the individual or corporate person whose cause is espoused, the State enjoys complete freedom of
action (sic).”
36 See above, Cf. P.C.I.J., Series A, No. 2, judgment of 30 August 1924. p. 12: “By taking up the case of
one of its subjects and by resorting to diplomatic action or international judicial proceedings on his
behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects,
respect for the rules of international law.”
37 By the UK, in its capacity as Mandatory for Palestine, that wrongfully refused since the year 1921 to
recognise the rights acquired under contracts and agreements concluded with the Ottoman authorities
in regard to concessions for certain public works to be constructed in Palestine.
38 See also P.C.I.J., Ser. A/B, No. 76, p. 16: “(…) it is the bond of nationality between the State and the
individual which alone confers upon the State the right of diplomatic protection, and it is as a part of
the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules
of international law must be envisaged.”