CYIL Vol. 5, 2014

ČESTMÍR ČEPELKA CYIL 5 ȍ2014Ȏ the cause of its national’. The wording implies not only that the right of diplomatic protection belongs only to the State exercising such protection, but also that the right that has been violated by the internationally wrongful act belongs only to the same State.(…) The Government of Italy believes that the exercise of diplomatic protection is, as a rule, a right that belongs only to the State and that international law does not provide either for a right of the injured individual to obtain diplomatic protection from its State or for a corresponding duty upon that State.” 27 Only Austria is rather equivocal about the said approach in indicating that the structure of diplomatic protection as a right of a State has always been discussed — as it is only a fiction that the State is injured through its nationals (italics added). 28 This right is, however, balanced by the corresponding obligation of the other States to accept such claims by a State. The question is whether there exists the same situation as according the responsibility of States for internationally wrongful acts. The term “international responsibility” covers the new legal relations which arise under (general) international law by reason of the internationally wrongful act of a State. 29 This new legal relation arises at the moment when the internationally wrongful act is carried out, and so the possible judgment (award) achieved during a settlement of dispute is only of declaratory nature because the reparation obligation (the typical aspect of State responsibility) arises earlier. In the case of the application of diplomatic protection the situation is different; see below. The ILC shares this conception currently, and therefore its Draft Articles on Diplomatic Protection is considered as a specific sub-topic of the theme of State responsibility. This is also the result of the preference given to the utility which could serve only as a developement stimulus (progressive development of international law in this area), 30 but gets worse for the codification of customary rules in the most traditional sense. 5. The legal nature of diplomatic protection The concept of diplomatic potection is due to the establishment abroad of aliens and their capital assets. Its extension is then linked to the so-called Jay treaty (1794), 31 this treaty introducing the arbitral commissions for the first time. 32 27 Cf. A/CN.4/561/Add.2, p. 2. 28 Cf. A/CN.4/561, p. 13. 29 Cf. Report of the International Law Commission, Fifty-third session, 2001, A/56/10, p. 63 (Commentary to Article 1). 30 Cf. First Report on Diplomatic Protection by the Special Rapporteur Mr. John R. Dugard, A/CN.4/506 (2000), p. 25, par. 68: “The present report is more concerned with the utility of the traditional view than its soundness in logic.” “(…) diplomatic protection, albeit premised on a fiction, is an accepted institution of customary international law (…).” 31 Officially: The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America (1794); see: http://en.wikipedia.org/wiki/Jay_Treaty. 32 In Article VI of the above mentioned Treaty. As yet used the practice of a sole arbitrator has almost ended.

164