209 / 532
193
THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION
be made for such an obligation, a recommendation was made in the draft article 19
adopted at second reading, the chapeau of which “Recommended Practice” expressly
suggests that it represents “an exercise in progressive development” and affirms that
the State “should” in the exercise of diplomatic protection
“give due consideration to
the possibility of exercising diplomatic protection, especially when a significant injury has
occurred”
and
“take into account, wherever feasible, the views of injured persons with
regard to resort to diplomatic protection and the reparation to be sought”
.
56
3.5 The “Transfiguration” of Diplomatic Protection
The ICJ has only recently held that individual rights exist directly under international
law in various fields. It was initially in the
LaGrand
case when the ICJ declared, with
regard to the Article 36 (1)(b) of the 1963 Vienna Convention on Consular Relations
(VCCR), that this provision evidently
“creates individual rights, which […] may be
invoked in this Court by the national State of the detained person”
.
57
Three years later, in
the
Avena
case, the ICJ provided the definitive interpretation of this aforementioned
provision. The ICJ, after recalling the
LaGrand
case, stated that Mexico not only
had
“contended that it had itself suffered, directly and through its national”
but, also,
that it had
“espoused the individual claims of its nationals through the procedure of
diplomatic protection”
.
58
This provision clearly underlines the individual’s right,
i.e.
that
“The said authorities shall inform the person concerned without delay of his rights
under this subparagraph”,
59
as well as the rights of the Contracting Party,
i.e.
the right
of the Sending State to provide consular assistance to its detained national.
60
Later,
in the same judgment, the ICJ added that
“violations of the rights of individuals under
Article 36 may entail a violation of the rights of the sending State, and that violations of
the rights of the latter may entail a violation of the rights of the individual”
.
61
Thus, this
situation of correlation means that in these
“special circumstances of interdependence
of the rights of the State and of individual rights”
,
62
we are in the presence of a claim
to guarantee these distinct rights, even though they are infringed by the same acts.
From this, one can discern that the central challenge raised by individual rights
to the traditional comprehension of diplomatic protection consists in acknowledging
that, when an individual is injured abroad, it is primarily his individual rights that are
concerned, and that the injury to such individual rights consequently affects the State’s
rights. This enlarged view of diplomatic protection reflects the primacy accorded
56
Diplomatic Protection, Titles and texts of the Draft Articles adopted by the Drafting Committee on
second reading, A/CN.4/L.684 (2006), Article 19.
57
LaGrand
case (Germany v. United States of America), Judgment, 2001 ICJ Reports, para. 77, 494.
58
Case Concerning Avena and Other Mexican Nationals
(Mexico v. United States of America), Judgment,
2004 ICJ Reports, para 40, at pp. 35-36.
59
Article 36 (1)(b) of the 1963 Vienna Convention on Consular Relations.
60
Article 36 (1)(c) of the 1963 Vienna Convention on Consular Relations.
61
Case Concerning Avena and Other Mexican Nationals
,
supra
note 58, para. 40, at p. 36.
62
Ibid.