CYIL Vol. 5, 2014

RETHINKING THE ILC DRAFT ARTICLES ON DIPLOMATIC PROTECTION… topic. He has been concerned with the legal nature of diplomatic protection since the beginning, 11 in essence continuing on the leading ideas of his predecessors. 12 He has since enriched the notion of the legal fiction, this unreality being the focal point of today’s ILC´s concept of diplomatic protection. “The present Rapporteur does not share his predecessor’s disdain for fictions in law. Most legal systems have their fictions. Indeed Roman law relied heavily on procedural fictions in order to achieve equity.” “We should not dismiss an institution, like diplomatic protection, (…) simply on the ground that it is premised on a fiction and cannot stand up to logical scrutiny ( sic ).” 13 At another place but in the same spirit he observes that “the present report is more concerned with the utility of the traditional view than its soundness in logic. (…) The diplomatic protection, albeit premised on a fiction, is an accepted institution of customary international law (…).” 14 But this is just not allowed in legal thinking, meaning to establish a legal institution based on a fiction. This is given by the notion concerned itself as presented by the legal literature. A legal fiction is a fact assumed or created by courts, which is then used in order to apply a legal rule which was not necessarily designed to be used in that way. 15 Fictio juris non est ubi veritas (There is no legal fiction where there is truth). 16 There is also an old adage: Fictions arise from the law, and not law from fictions. 17 The said fiction of law was then incorporated in two articles of the Draft Articles on Diplomatic Protection; this draft had been already that of the Commission of International Law. The first article determines the invocation by a State of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State. 18 The injury caused to a private person being a national of another State is here (according to the Commission’s view) the rationale that the topic of diplomatic protection be considered as a specific sub-topic of the theme of State responsibility although treated separately as a independent topic. 11 Cf. First Report on Diplomatic Protection by the Special Rapporteur John R. Dugard, A/CN.4/506 (2000). 12 Cf. UN Doc. A /CN.4/L.537, 1997, and UN Doc. A/CN. 4/484, 1997, doc. cit. supra . 13 Cf. First Report on Diplomatic Protection by the Special Rapporteur John R. Dugard, A/CN.4/506 (2000), par. 21. 14 Cf. ibidem , par. 68. 15 Cf. http://en.wikipedia.org/wiki/Legal_fiction. 16 Cf. Black, H. C. (et al.) Black’s Law Dictionary , 6th edn. St. Paul (Minn): West publishing , 1990: heading – fiction of law. See also http://www.inrebus.com/legalmaxims_f.php. 17 Cf. http://legal-dictionary.thefreedictionary.com/Legal+Fiction. 18 Cf. Art. 1 – Definition and scope – “For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.”

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