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DIANA CUCOS
CYIL 5 ȍ2014Ȏ
a mere
object
2
to a
habitué
3
of international law. These continuous developments of
international law have encouraged scholars to review the individual’s status in various
areas of international law and prompted a number of pertinent questions: what is
the position of the individual under human rights law
4
or investment law; should it
now be acknowledged that individuals can have obligations under international law
that extend beyond the individual responsibility for international crimes under
international law;
5
how has international humanitarian law developed with respect
to individuals; and last, but not least, what is international law´s engagement with the
individual in diplomatic protection claims.
6
This paper tackles the issue of the status of individuals in post-codification
diplomatic protection, taking into consideration codification and the progressive
development of the law on diplomatic protection and relevant jurisprudence in
the field. To this end, the research is based on the Draft Articles on Diplomatic
Protection,
7
adopted by the International Law Commission (ILC) in 2006,
8
commentaries on the Draft Articles and the Reports of the second Special Rapporteur,
John Dugard.
9
2
Even from the beginning of the 19
th
and early 20
th
centuries, the issue of the position of the individual in
international law has received international legal doctrinal attention, even if individuals were conceived as
mere objects to a system.
3
Nowadays, the individual has shifted his position to the central circles of international law.
4
The development of human rights law in the second half of the past century marked the standing of
individuals before international fora. For a perspective on the procedural status of individuals in the
European Convention of Human Rights,
see
Alberto M. Aronovitz, “The Procedural Status of Individuals in
Diplomatic Protection and in the European Convention on Human Rights: A Comparative Study”,
Revue
de droit comparé
, 1994, Vol. 28, afl. 4, at pp. 15-53; J.-F. Flauss “Protection Diplomatique et Protection
Internationale des Droits de l’Homme”,
Revue Suisse de Droit International
, 2003, no. 1, at pp. 1-36.
5
Andrew Clapham, “The Role of the Individual in International Law”,
EJIL
, 2010, Vol. 21, No. 1, pp. 25-30,
at p. 25.
6
For a broader picture of the status of the individual in the international legal system,
see
Kate Parlett,
The
Individual in the International Legal System. Continuity and Change in International Law
, Cambridge
University Press, 2011.
7
The institution of diplomatic protection developed and established itself both in practice and doctrine
during the 19th century. In 1996, he ILC identified the topic of “Diplomatic protection” as one of the
topics appropriate for codification and progressive development. See Official Records of the General
Assembly, 51st Session, Supplement No. 10 (A/51/10), para. 249, and annex II, Addendum 1. In the
process of codification, the customary law approach to diplomatic protection formed the basis for the
work of the ILC, while also taking into account the development of international law in increasing
recognition and protection of the rights of individuals and in providing them with more direct and
indirect access to international forums to enforce their rights. See John Dugard, First Report on
Diplomatic Protection, United Nations, Document A/CN.4/506 (7 March 2000), para. 4.
8
Report of the International Law Commission, 58
th
Session, 2006, Supplement No. 10 (A/61/10).
9
John Dugard is with certitude one of the most qualified publicists that had an impact on doctrine
and the law in general and has contributed much to the successful conclusion of the codification
project of diplomatic protection in particular. He received the ILC’s well-deserved recognition for his
effective role: “The Commission […] expresses to the Special Rapporteur, Mr. Christopher John Robert
Dugard, its deep appreciation and warm congratulations for the outstanding contribution he has made
to the preparation of the Draft Articles through his tireless efforts and devoted work, and for the results