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THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION
pretends to suffer an injury, through injury caused to one of its nationals, as a result
of an internationally wrongful act. Hence, it appears important to emphasize the
indirect nature of the injury.
There might be cases when the violation of the individual’s human rights will
affect the interests of the national State.
34
This is the case when violations have a
systematic character and reveal a discriminatory policy on the part of the injuring
foreign State against all nationals of the State in question. However, in the case of
an isolated injury to an alien, the qualification of an injury to the national State is
indeed a fiction. One could suggest that it would be more correct to hold that, in
such cases, the national State acts as an agent of the individual in asserting his claim.
35
In interpreting the position of Vattel, it is evident that the initial violation of the
law is not a violation of the right of the State. While it is certainly true that States
partly assert their own rights in exercising diplomatic protection, they only do so
through a fiction that transforms the violation of the primary rights of the individual
national concerned into the secondary right of his national State to present claims.
36
This transition is exercised in two ways: an individual right is transformed into the
right of a State, and a primary right is transformed into a secondary right.
37
Yet, some
of the underlying rights and obligations within secondary rules also belong to the
individual; thus, the legal fiction operates only after the exhaustion of local remedies,
and after the occurrence of an internationally wrongful act has been established.
Indeed, the legal fiction brings an amalgam of primary and secondary rules into the
realm of the secondary rules. It lifts the claim to the international level and allows
the application of a secondary right to the violation of a primary right which caused
the injury to the individual. The right resulted and asserted is the right to exercise
diplomatic protection,
i.e.
to claim responsibility of another State and to demand
reparation for the injury.
As rightly acknowledged by the Special Rapporteur, the exhaustion of the local
remedies rule, the continuous nationality of claim rule,
38
and the general practice
since
Chorzow Factory
case
39
to estimate damages proportional to the injury suffered
by the individual certainly show the fictitious nature of diplomatic protection.
40
These prerequisites primarily relate to the individual but constitute preconditions for
the right of the national State to exercise diplomatic protection. The incapacity of
the individual to claim his own rights under international law against another State
indicates the necessity for the application of the legal fiction. Dugard also emphasized
34
J. L. Brierly, “The Theory of Implied State Complicity in International Claims”, 9
BYIL
, 1928, at p. 48.
35
John Dugard, First Report, para. 19.
36
Annemarieke Vermeer-Künzli, “As If: The Legal Fiction in Diplomatic Protection”,
EJIL
, 2007,
Vol. 18, No. 1, pp. 37-68, at p. 39.
37
Ibid,
at p. 55.
38
The requirements applicable to diplomatic protection,
i.e.
the exhaustion of local remedies and
nationality of claims, do not apply if a State is
in reality
claiming its own right.
39
Case concerning the Factory at Chorzow
(Germany v. Poland), 1928 PCIJ, Series A, No.17, at p. 28.
40
John Dugard, First Report, para. 19.