185 / 532
169
DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION…
bilateral investment treaties. However, as John Dugard, Special Rapporteur of the
International Law Commission for the topic “Diplomatic protection”, pointed out,
“to suggest that universal human rights conventions, particularly the International
Covenant on Civil and Political Rights, provide individuals with effective remedies
for the protection of their human rights is to engage in a fantasy which, unlike fiction,
has no place in legal reasoning. The sad truth is that only a handful of individuals,
in the limited number of states that accept the right of individual petition to the
monitoring bodies of these conventions, have obtained or will obtain satisfactory
remedies from these conventions.”
1
Thus, according to John Dugard, “diplomatic
protection provides a potential remedy for the protection of millions of aliens
who have no access to remedies before international bodies and a more effective
remedy to those who have access to the often ineffectual remedies contained in
international human rights instruments.”
2
The International Law Commission, in its Draft Articles on Diplomatic Protection,
defined diplomatic protection as “invocation by a State, through diplomatic action
or other means of peaceful settlement, of the responsibility of another State for an
injury caused by an internationally wrongful act of that State to a natural or legal
person that is a national of the former State with a view to the implementation of
such responsibility” (Article 1). Article 2 of the Draft Articles expressly provides
that “a State has the right to exercise diplomatic protection” and the Commision,
in its commentary to Article 2, confirmed long established rule that a State has
a right to exercise diplomatic protection, but it is under no duty or obligation under
international law to do so:
3
according to the Commission, the internal law of a State
may oblige a State to extend diplomatic protection to a national, but international
law imposes no such obligation.
4
However, at the same time the Commission mentioned that “today there is support
in domestic legislation and judicial decisions for the view that there is some obligation,
however limited, either under national law or international law, on the State to protect
its nationals abroad when they have been subjected to serious violations of their human
1
John Dugard, Diplomatic Protection and Human Rights: The Draft Articles of the International Law
Commission,
Australian Year Book of International Law
, Vol. 24, 2005, p. 77.
2
Ibid.
, p. 79.
3
See for example the judgment of the International Court of Justice in the case concerning the
Barcelona Traction Light and Power Company Limited (Belgium v. Spain), Second Phase, Judgment
of 5 February 1970, paras. 78 and 79 (“Within the limits prescribed by international law, a State may
exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own
right that the state is asserting. Should the national or legal person on whose behalf it is acting consider
that their rights are not adequately protected, they have no remedy in international law. All they can
do is to resort to municipal law, if means are availale, with a view to furthering their cause or obtaining
redress. …The State must be viewed as the sole judge to decide whether its protection will be granted,
to what extent it is granted and when it will cease. It retains in this respect a discretionary power the
exercise of which may be determined by considerations of a political or other nature, unrelated to the
particular case.”).
4
Report of the International Law Commission, 58th session (2006), doc. A/61/10, p. 29, para. 2.