CYIL Vol. 5, 2014

ČESTMÍR ČEPELKA CYIL 5 ȍ2014Ȏ John Dugard erroneously presupposes that this approach to diplomatic protection is “an important weapon in the arsenal of human rights protection”. 39 This discussed protective activity is limited to nationals, but in case of human rights the protection also regards foreign nationals as human beings. 6. Conclusion With the intention of the International Law Commission (ILC) to codify the topic of diplomatic protection, it has been believed that a generalization of a practice lasting more than hundred years (see above), with many thousands of arbitral decisions, is occurring. Instead of this the ILC refers only to one judgment (the Mavrommatis principle), and this even by the help of a fiction consisting in a pure invention that a harm caused to an alien is simultaneously a harm to his nationality State. This consequently produces the responsibility of the residence State for internationally wrongful acts. The whole draft is so more a contribution to the developement of international law than a codification of customary rules of an old phenomenon in this legal system. 40 The said target, which means to contribute to the development of international law, can hadly be achieved (mainly) without the codification of the topic of State responsibility; but, unfortunately, there is no solution in sight. 41

39 See above doc. A/CN. 4/506, par. 32. 40 Cf. A/CN. 4/561, p. 51: “The United States of America would like to request that the International Law Commission makes clear in the commentaries which draft articles it considers progressive development of the law, as opposed to codification of customary international law.” 41 See Čepelka, Č. , The ILC Articles on State Responsibility: A Reflection Years Later. Czech Yearbook of Public & Private International Law . Vol. 4, 2013, p. 3.

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