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rights.”
5
To take into account these concerns, the Commission adopted Article 19
(a) which, i.a., recommends that a State entitled to exercise diplomatic protection
“should… give due consideration to the possibility of exercising diplomatic protection,
especially when a significant injury has occurred”. Furthermore, Draft Article 19
(b) and (c) recommend that states take into account the views of injured persons
with regard to resort to diplomatic protection and the reparation to be sought and
transfer such compensation to the individual. However, this provision is formulated
only as a non-binding, “recommended practice”.
6
The above recommendation contained in Article 19 (a) is a remote reflection of
the original Draft Article 4, as presented by the Special Rapporteur, Mr. John Dugard,
in his first report on diplomatic protection.
7
The Special Raporteur suggested in this
article, as a
de lege ferenda
endeavour, that, under specified conditions (unless the injured
person is able to bring a claim for such injury before a competent international court
or tribunal) and exceptions (i.a. unless the exercise of diplomatic protection seriously
endangers the overriding interests of the State and/or its people), a State should have
a legal duty (under international law) to exercise diplomatic protection on behalf
of the injured person upon request, if the injury results from a grave breach of a
ius
cogens
norm attributable to another State.
8
Draft Article 4 (3) subjected the decision
5
The Commission refers to the following decisions: Rudolf Hess case, ILR vol. 90, p. 387; Abbasi
v. Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ. 1598; Kaunda v.
President of the Republic of South Africa 2005 (4), South African Law Reports 235 (CC), ILM vol. 44
(2005), p. 173.
6
The Commission stated in its commentary to Article 19 that “there are certain practices on the part of
States in the field of diplomatic protection which have not yet acquired the status of customary rules and
which are not susceptible to transformation into rules of law in the exercise of progressive development
of the law. Nevertheless they are desirable practices, constituting necessary features of diplomatic
protection, that add strength to diplomatic protection as a means for the protection of human rights
and foreign investment. These practices are recommended to States for their consideration in the
exercise of diplomatic protection in draft article 19 … ”. Report of the International Law Commission,
58th session (2006), doc. A/61/10, p. 94-5, para. 1. On the other hand, a few paragraphs later, the
Commission also expressed the opinion that
“it is possible to seriously suggest that international law
already recognizes the existence of some obligation on the part of a State to consider the possibility of exercising
diplomatic protection on behalf of a national who has suffered a significant injury abroad. If customary
international law has not yet reached this stage of development, then draft article 19, subparagraph (a), must
be seen as an exercise in progressive development.”
Report of the International Law Commission, 58th
session (2006), doc. A/61/10, pp. 96-97, para. 3.
7
First report on diplomatic protection by Mr. John Dugard, Special Rapporteur, doc. A/CN.4/506, 7
March 2000, p. 27
et seq
.
8
The original Special Rapporteur’s draft article 4 reads as follows:
1. Unless the injured person is able to bring a claim for such injury before a competent international
court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on
behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm
attributable to another State.
2. The State of nationality is relieved of this obligation if:
(a) The exercise of diplomatic protection would seriously endanger the overriding interests of the State
and/or its people;
(b) Another State exercises diplomatic protection on behalf of the injured person;