208 / 532
192
DIANA CUCOS
CYIL 5 ȍ2014Ȏ
individuals have claimed the right to diplomatic protection in States where there is
no express constitutional obligation to grant diplomatic protection (as in the case of
Germany).
Yet, the exact meaning of the traditional approach remains, to a significant
extent, undetermined, particularly in the context of contemporary international
developments. Is this a discretionary right, as asserted by the ICJ in the
Barcelona Traction
case, or is there an obligation upon a State to exercise diplomatic protection on behalf
of a national, particularly one who has been subjected to treatment constituting the
violation of a norm of
jus cogens
?
50
The proposal made by the Special Rapporteur
to acknowledge that there was some obligation on States, however limited, in the
latter case, was rejected by the ILC at the first reading.
51
Dugard calls it a “missed
opportunity”, as the greatest weakness of diplomatic protection is that it is left entirely
to the State of nationality to decide whether or not to exercise diplomatic protection
on behalf of its national, even in response to such violations.
52
The discretionary
right to exercise diplomatic protection has no place in contemporary international
law.
53
For, analogically, the obligation of any State which is party to a human rights
convention to ensure that everyone within its jurisdiction has effective protection
against violation of the rights provided in the convention and to provide adequate
means of redress should then entail that the State of nationality is obliged to exercise
diplomatic protection when the most basic human rights of its nationals are seriously
violated abroad, particularly in the case of a “grave breach of
a jus cogens
norm”.
54
Dugard’s provision was not referred to the drafting committee, as it was withdrawn
on the grounds that
“the general view was that the issue was not yet ripe for the attention
of the ILC and that there was a need for more State practice and, particularly, more opinio
juris before it could be considered”
.
55
However, as a result of the suggestion by some
States in their comments on the draft articles accepted at first reading that a provision
50
John Dugard,
Articles on Diplomatic Protection
, United Nations Audiovisual Library of International
Law (2013),
www.un.org/law/avl, at p. 4.
51
Dugard admits that Article 4 was proposed
de lege ferenda
as it had little practice to support it. It
provided:
“1. Unless the injured person is able to bring a claim for such injury before a competent international court
or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the
injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to
another State.
2. The State of nationality is relieved of this obligation if:
(a) The exercise of diplomatic protection would seriously endanger the overriding interests of the State and/or
its people;
(b) Another State exercises diplomatic protection on behalf of the injured person;
(c) The injured person does not have the effective and dominant nationality of the State.
3. States are obliged to provide in their municipal law for the enforcement of this right before a competent
domestic court or other independent national authority.” See
John Dugard, First Report.
52
John Dugard,
supra
note 49, at p. 80.
53
Ibid,
at p. 81.
54
Ibid.
55
Report of the ILC (52
nd
Session) Supplement 10, A/5510, 2000, at p. 158, 456.