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THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION
been replaced by an international human rights standard (contemporary-“optimistic
approach”) which accords to nationals and non-nationals the same standard of
treatment – a standard incorporating the core provisions of the Universal Declaration
of Human Rights; the individual is now a subject of international law with standing
to enforce his human rights at the international level, mainly by according direct
access to file complaints against States before various regional and UN human rights
protection mechanisms and investment dispute settlement mechanisms, and by
creating
ad hoc
international claims tribunals and commissions; the right of a State
to claim on behalf of its national should be restricted to cases where there is no
other method of settlement agreed on by the alien and the injuring State; in such a
case the claimant State acts as agent for the individual and not in its own right; and
the right of a State to assert its own right when it acts on behalf of its national is an
outdated fiction which should be discarded – except, perhaps, in cases in which the
real national
interest of the State is affected.
17
There are several fundamental flaws in this perspective: first, its disdain for the use
of fiction in law; and, secondly, its exaggeration of the present state of international
protection of human rights.
18
To rely on the argument that an institution which
is based on a fiction should be dismissed simply because it is based on a fiction, is
misplaced. An institution such as diplomatic protection which serves a purpose is
not to be dismissed simply on the ground that it is premised on a fiction, and cannot
withstand logical scrutiny. For, legal fictions are a generally accepted phenomenon
in the majority of legal systems. Moreover, diplomatic protection, as will become
evident, is a legal form which, in fact, recognizes a combination of interests.
19
The recognition that developments of a procedure nature in the field of international
human rights law have rendered diplomatic protection obsolete cannot, however,
simply be dismissed. For Garcia Amador, the traditional view of diplomatic protection,
which allowed the State to claim on behalf of its injured national, belongs to an age
in which the rights of the individual and the rights of the State were inseparable;
and that present position is “completely different”. He argued that
both
aliens and
nationals enjoy rights from their existence as human beings and not by virtue of their
nationality, and, therefore, that alien had been accorded international recognition of
his legal personality, independently of his State, and was a true subject of international
rights.
20
This reasoning clearly emphasizes that the logic of development is away from
the international minimum standard towards individual human rights, where the
individual, now accorded with rights and duties under international law, should, other
than in exceptional cases, have sufficient, independent legal standing when abroad.
17
F. V. García Amador, “State Responsibility. Some New Problems”, 94 Recueil des Cours, 1958 II,
at p. 421, 437-439, 472; García Amador, Second Report, United Nations document A/CN.4/106,
Yearbook … 1957, vol. II, at pp. 112-116; M. Bennouna, “Preliminary Report on Diplomatic
Protection”, A/CN. 4/484, paras. 34-37.
18
John Dugard, First Report, para. 18.
19
Chittharanjan F. Amerasinghe,
Diplomatic Protection
, Oxford University Press, 2008, at p. 74.
20
F. V. García Amador, “State Responsibility. Some New Problems”,
supra
note 17, at p. 421.