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THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION
1. International Legal Personality in The Paradigm Flux
One could ask how the development and clarification of international law affect
the standing of individuals. Two fundamentally different perspectives are identified
in the doctrine. The traditional “positivist approach” of international law established
a dichotomy between
objects
and
subjects
of international law. Within this paradigm,
the latter is attributed to States and possibly international organizations, whereas
individuals are taken into consideration as
objects
, that is, an extension of States’
jurisdiction, a mere accessory of their State of nationality. Therefore, the regime
applied to individuals is governed by the jurisdiction of the State of nationality,
and, thus, international law is only concerned with individuals in cases when they
constitute the cause of conflict between States.
Indeed, up to the 1950’s, individuals had no distinct position in the international
legal order, no rights to be parties to international juridical or arbitral proceedings;
the consequence being that they were unable to defend their rights and interests against
the (injuring) foreign State. However, jurisprudence and State practice show that even
until the 1950’s individuals benefited indirectly from a certain level of international
protection,
i.e.
when the national State intervened for the benefit of its citizens
in situations where they were not treated by the State of residence (foreign State)
according to the traditional rules of general international law (the so-called “minimum
standard”) and agreements binding upon that State.
10
This procedure is usually referred
to as “diplomatic protection of nationals abroad”. Under it, individuals relied entirely
on their State of nationality for the internationalization of their claim. Embracing
the object theory of the status of individuals under international law, in the famous
Mavrommatis Palestine Concessions
case, the Permanent Court of International
Justice (PCIJ) stated that:
“By taking up the case of one of its subjects and by resorting to
diplomatic action or international juridical proceedings on his behalf, a State is in reality
asserting its own right – its right to ensure, in the person of its subjects, respect for the
rules of international law. The question, therefore, whether the present dispute originates
in an injury to a private interest, which in point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf
of one of its subjects before an international tribunal, in the eyes of the latter the State is
sole claimant”.
11
The contemporary – “optimistic approach” – that can be defined as the new
approach, or
nouvelle vague
,
12
is the product of the development of the international
achieved in the elaboration of Draft Articles on diplomatic protection”. See Report of the ILC, 58th
Session, 2006, Supplement No. 10 (A/61/10), para. 47.
10
According to traditional international law, the legal position of individuals depends from both the State
of residence and the State of nationality, the former being bound to respect the rights of aliens and the
latter being entitled to protect.
11
Mavrommatis Palestine Concession case
(Greece v UK), 1924 PCIJ, Series A, No. 2, at p. 12. Fifteen
years later, this dictum was repeated by the Court in the Panevezys-Saldutiskis Railway case (Estonia v
Lithuania), 1939 PCIJ Reports, Series A/B, No. 76, at p.16.
12
Giovanni Distefano, “The Position of Individuals in Public International Law Through the Lens of