CYIL 2014

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THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION

The increasingly individual-oriented development of international law has also

significantly influenced and challenged the traditional view of diplomatic protection.

During the codification work the ILC took into consideration the evolution of the

international legal system and agreed in the process of codification to

“take into

account the development of international law in increasing recognition and protection

of the rights of individuals and in providing them with more direct and indirect access

to international forums to enforce their rights”

However, the final set of draft articles

is not a complete and comprehensive reflection of this goal, as it disregarded the

two most essential elements of the individual-orientated evolution of international

law: diplomatic protection’s legal nature and the reparations obtained. It should,

however, be acknowledged that the Special Rapporteur intervened decisively and, in

the carefully articulated legal exposition, sought to transform diplomatic protection

into a contemporary tool for the protection of the rights of the individual. He refers

to the unaccepted progressive development, embedded in his approach, as a set of

“missed opportunities”.

One could ask: has the process of codification introduced progress or stagnation

in the determination of the status of the individual in diplomatic protection? The

range of issues examined above, focused upon the central elements of diplomatic

protection, leads to the conclusion that there has been little effective advancement in

the status of the individual. The ILC continually repeated that diplomatic protection

is the right of the State, and the main focus of the draft articles concentrated on

the two major components – nationality of claims and the exhaustion of local

remedies. Though not immediately and directly visible, the final set of draft articles

on diplomatic protection contains, in an essentially unacknowledged manner, an

enhancement of the rights of non-nationals abroad, but still within the framework

of the traditional understanding of international law. Moreover, post-codification

diplomatic protection contains provisions that extend beyond the traditional law

of diplomatic protection, and encompasses the protection to stateless persons and

refugees, in addition to the

illuminati

recommendation of Article 19.

In the light of the evolution of the status of individuals in international law, which

is reflected in a particular manner in the work of the ILC, and in the recent ICJ case-

law, it is obvious that the contemporary law on diplomatic protection has changed.

The change is, however, one which is produced not in the essence of diplomatic

protection but in its aims. Therefore, diplomatic protection has become a tool

enabling the national State: (1) to protect its own rights whenever a national has been

injured abroad, and (b) to protect its national’s rights since the individual national

is incapable of internationalizing a claim, in his own rights, under international law

vis-à-vis the injuring State.

Finally, in view of the above, it can hardly be maintained that the individual is

a full subject of international law from the perspective of diplomatic protection.

Official Records of the General Assembly, 53rd Session, Supplement No. 10

(A/53/10) (1998), Report of

the International Law Commission on the work of its 50

Session, para. 108.