206 / 532
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CYIL 5 ȍ2014Ȏ
that, while fictions clearly are an alteration of reality, they should not be dismissed
out of a “disdain for the use of fictions in law”,
41
in particular, when the “institution,
like diplomatic protection” relying on a fiction “serves a valuable purpose”,
42
that is,
the protection of human rights.
The fiction is no more than a means to an end, the end being the maximal protection
of individuals against violations of international (human rights) law. In its difficult
task the ILC had decided on a balance by retaining the fiction in draft article 1,
but adding an exhortatory provision in draft article 19. This solution may advance
the position of the individual and, thereby, constitute a progressive step away from
the rigid
Mavrommatis
régime. It does not, however, affect the fictitious nature of
diplomatic protection. It seems that the fiction continues to be an indispensable tool
for the protection of individual rights, in particular considering the limited agency
individuals have under contemporary international law.
3.3 The Issue of Mixed claims
Diplomatic protection stipulates that an injury to an individual by a foreign
State is actionable by the State of nationality of the injured individual. The injury of
individual rights stands, of course, at the foundation of the granting of diplomatic
protection. However, there is also a practice of so-called “mixed claims”,
i.e.,
when
the claim is based on both direct and indirect injury. For mixed claims in diplomatic
protection the predominant position is to refer to the
LaGrand
and
Avena
cases before
the ICJ. It should be borne in mind that the prerequisites for granting diplomatic
protection, such as the exhaustion of local remedies and the nationality of claims,
are applicable only for the part of the claim that is based on indirect injury. Even if
the claim also incorporates elements of direct injury, the preconditions for granting
diplomatic protection will be applicable only to the indirect part of the claim.
43
Under
international law, when asserting the State’s own claims, based on its own direct injury,
claims can be brought directly and do not require the instrument of diplomatic
protection.
3.4 Diplomatic Protection: A Discretionary Right of the State
The decision whether or not to exercise diplomatic protection is traditionally of a
discretionary nature. Indeed, no instrument of international law, whether in the past
or present, contradicts what was clearly stated by the ICJ in the
Barcelona Traction
case:
“Within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own right
that the State is asserting.[…] The State must be viewed as the sole judge to decide whether
its protection will be granted, and to what extent it is granted, and when will it cease. It
retains in this respect a discretionary power the exercise of which may be determined by
41
Ibid.
para. 18.
42
Ibid,
para. 21.
43
Interhandel
case (Preliminary Objections) (Switzerland v United States of America), 1959 ICJ Reports,
at p. 6 and
Elettronica Sicula S.p.A. (ELSI)
case (United States of America v Italy), 1989 ICJ Reports, at p. 15.