182 / 532
166
ČESTMÍR ČEPELKA
CYIL 5 ȍ2014Ȏ
John Dugard erroneously presupposes that this approach to diplomatic protection is
“an important weapon in the arsenal of human rights protection”.
39
This discussed
protective activity is limited to nationals, but in case of human rights the protection
also regards foreign nationals as human beings.
6. Conclusion
With the intention of the International Law Commission (ILC) to codify the
topic of diplomatic protection, it has been believed that a generalization of a practice
lasting more than hundred years (see above), with many thousands of arbitral decisions,
is occurring. Instead of this the ILC refers only to one judgment (the Mavrommatis
principle), and this even by the help of a fiction consisting in a pure invention that
a harm caused to an alien is simultaneously a harm to his nationality State. This
consequently produces the responsibility of the residence State for internationally
wrongful acts. The whole draft is so more a contribution to the developement of
international law than a codification of customary rules of an old phenomenon in
this legal system.
40
The said target, which means to contribute to the development
of international law, can hadly be achieved (mainly) without the codification of the
topic of State responsibility; but, unfortunately, there is no solution in sight.
41
39
See above doc. A/CN. 4/506, par. 32.
40
Cf.
A/CN. 4/561, p. 51: “The United States of America would like to request that the International Law
Commission makes clear in the commentaries which draft articles it considers progressive development
of the law, as opposed to codification of customary international law.”
41
See Čepelka, Č.
,
The ILC Articles on State Responsibility: A Reflection Years Later.
Czech Yearbook of
Public & Private International Law
. Vol. 4, 2013, p. 3.