207 / 532
191
THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION
considerations of a political or other nature, unrelated to the particular case… The State
enjoys complete freedom of action”
.
44
In this view a State has the right to exercise diplomatic protection without being
required to provide justification for its decision, and any renunciation by an individual
of diplomatic protection is void, since the national’s State can override it and take up
their national’s case, albeit against his will.
45
The traditional approach also indicates that
determinants underlying the decision (not) to exercise diplomatic protection may vary
depending on each particular case and may rely solely on distinct policy considerations
entirely different from the interests of the directly injured individual.
46
Furthermore, once
a State has espoused a claim, it has a discretionary power over the manner in which the
claim is pursued, and the individual is entitled to no international right regarding the
claim. It is traditionally considered that the individual has no remedy under international
law if he is not satisfied with the manner in which the protection was carried out. The ICJ
expressed this in its decision in the
Barcelona Traction
case:
“[S]hould the natural or legal
person on whose behalf it is acting consider that their rights are not adequately protected, they
have no remedy in international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. The municipal legislator
may lay upon the State an obligation to protect its citizens abroad, and may also confer upon
the national a right to demand the performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions remain within the province of municipal
law and do not affect the position internationally”
.
47
In conformity with this approach, the individual has no means to oblige his State
of nationality to exercise diplomatic protection or to prevent a willing State from
exercising it through waivers. Internationally, the State has no obligation to exercise
diplomatic protection, but once granted, it may take into account the interests of the
individual, or may even grant him related rights under its own national law. Many
States inserted in their Constitutions the right of the individual to receive diplomatic
protection for injuries suffered abroad.
48
The manner in which this right is enforceable
in the domestic courts is far from clear, particularly in the case of former communist
States where this right is more a constitutional embellishment.
49
On the other hand,
44
Case Concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain), Judgment,
1970 ICJ Reports, at p. 44, para. 78.
45
It should be noted that this situation may raise problems at the stage of the exhaustion of local
remedies, since the individual cannot be bound to solicit them, thus preventing his own State from
espousing the claim.
46
Berlia, G., “Contribution à l’étude de la nature de la protection diplomatique”,
Annuaire Français de
Droit International
, Centre National de la Recherche Scientifique, 1957, III, pp. 63-72, at p. 65.
47
Case Concerning the Barcelona Traction,
supra
note 44, at p. 44, para 78.
48
For example, Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia,
Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People’s Democratic Republic, Latvia, Lithuania,
Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the Former Yugoslav Republic
of Macedonia, Turkey, Ukraine, Vietnam.
49
John Dugard, “Diplomatic Protection and Human Rights: The Draft Articles of the International Law
Commission”,
Australian Year Book of International Law
, 2005, Vol. 24, at p. 81.