CYIL 2014

188

DIANA CUCOS

CYIL 5 ȍ2014Ȏ

do not possess the international

“capacity … [to] bring an international claim against …

another direct subject of international law”,

the only remaining means to elevate the

dispute to the international arena is for the State of nationality to espouse the claim

of its national. The lack of remedies makes the individual dependent on his State of

nationality. Thus, when courts do not recognize the capacity for individual access,

one needs a necessary fiction to link the injury with the claim, because, procedurally,

only the State of nationality can bring an international claim against the foreign State.

Although when espousing a claim the State makes its own what originally belonged

to the individual, once the claim is brought, from the perspective of international

law, the State is the only claimant.

The draft article 1 of the ILC draft articles on diplomatic protection, adopted on

first reading, stipulated that States adopt in their own right the injury sustained by

their national.

This strongly reflects the fictitious nature of diplomatic protections.

It is also embodied in the dictum in the

Mavrommatis Palestine Concessions

case.

The decision in

Mavrommatis

relies on what is often called the “Vattelian” fiction or

formula. Writing in 1758 the Swiss jurist Vattel stated that:

“Quiconque maltraite un

Citoyen offense indirectement l’Etat, qui doit protéger ce Citoyen. Le Souverain de celui-ci

doit venger son injure, obliger, s’il le peut, l’aggresseur à une entière réparation, ou le punir;

puisqu’autrement le Citoyen n’obtiendroit point la grande fin de l’association Civile, que

est la sûreté”

If the foreign individual cannot obtain appropriate satisfaction at

the level of local remedies, then, according to the authoritative statement of Vattel,

diplomatic protection allows the national State to

“take up the case of its subject”

, as the

State suffers from the injury caused to its national abroad. This fiction allows the State

to seek reparation for this injury, through the mechanism of diplomatic protection, as

the injuries suffered by nationals abroad are attached to their State of origin.

The traditional view is based on the idea that international obligations have an

inter-State character, and, thus, may only be owed to States, an approach confirmed

by the International Court of Justice (ICJ) in its decision in the

Reparation

case,

where it considered that the rule inhering diplomatic protection rests on the bases

that

“the defendant State has broken an obligation towards the national State in respect

of its national [and] that only the party to whom an international obligation is due

can bring a claim in respect of its breach”.

It also reflects the position that the State

Reparations for Injuries Suffered in the Service of the United Nations,

Advisory Opinion, 1949 ICJ

Reports, at p. 177, 178.

Diplomatic Protection – titles and texts of the draft articles on Diplomatic Protection adopted by

the Drafting Committee on first reading, International Law Commission 56

session, A/CN.4/L/647

(2004), at p. 1. Later the commentary to the articles on diplomatic protection, adopted by the ILC on

second reading in May 2006, stated that diplomatic protection is based on a fiction: the injury to an

individual is treated as if it constitutes an injury to the individual’s national State, thereby entitling the

national State to espouse the claim. See ILC Report 2006, Commentary to draft Art. 1, at p. 25.

E. de Vattel,

Le Droit des Gens ou Principes de la Loi Naturelle

, à Leiden aux Dépens de la Compagnie,

1758, Vol. I, book II, para. 71.

Reparations for injuries suffered in the service of the United Nations

supra

note 30, at pp. 181-182.