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standing of individuals under human rights and investment treaties, and it is bound
up with the rise in the international protection of human rights. According to this
second perspective, a person, as a possessor of an intrinsic human dignity, enjoys
rights and protection against any State, including the State of nationality. Hence,
in the formulation of Higgins,
“a human right is a right held vis-à-vis a State, by
virtue of being a human being”
.
13
This emergence of the individual onto the stage of
international law caused some to argue that the status of the individual had evolved
from that of an
object
to
subject
.
2. The Individual – Orientated Evolution of the International Law –
– Is Diplomatic Protection Obsolete?
It appears obvious that much has changed in recent decades with regard to the
standards of justice for individuals at home and as non-nationals abroad. These
standards of justice derive from the prominence and proliferation of civil, political,
social and economic rights. Today, more than 150 States are parties to human rights
conventions of one kind or another, which, in some cases, empower the individual,
whether alien or national, to bring complaints about the violation of his human rights
to the attention of international bodies, such as the United Nations Human Rights
Committee, the European Court of Human Rights, the Inter-American Court of
Human Rights or the African Commission on Human and People’s Rights.
14
More exactly, the argument is that aliens do not require diplomatic protection
as, in common with any other individual, they can resort to the protection accorded
to them through their status as human beings under the UN Charter provisions
and through human rights conventions. In other words, individuals no longer enjoy
human rights by virtue of their nationality, but by virtue of the fact that States are
required to grant enjoyment of human rights to all individuals within their territory
irrespective of their nationality.
15
The individual-orientated evolution of international law and the contemporary
recognition of individual standing have generated questions in relation to the obsolescence
of diplomatic protection and its major role in international law. Dugard summarized,
and then convincingly combatted, the exaggerations of human rights developments.
16
The emergence of this attempted marginalization of diplomatic protection is based
upon the view that: the equality-of-treatment-with-nationals-standard and the
international minimum standard of treatment of aliens (positivist approach) have
Diplomatic Protection: The Principle and Its Transfiguration”, in: Robert Kolb and Gloria Gaggioli (eds.),
Research Handbook on Human Rights and Humanitarian Law, Cheltenham, 2012, pp. 65-74, at p. 65.
13
R. Higgins,
Problems and Process: International Law and HowWe Use It
, Oxford University Press, 1994,
at p. 98.
14
John Dugard,
First Report on Diplomatic Protection
, United Nations, Document A/CN.4/506 (7 March
2000), para. 15.
15
G. Gaja, “Is a State specially affected when its nationals’ human rights are infringed?”, in: L. Chand
Vohrah
et.al.
(ed.),
Man’s Inhumanity to Man
, The Hague, 2003, at p. 382.
16
John Dugard, First Report, para. 17.