CYIL 2014

THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION private persons that space through treaties; this development did not develop from customary international law. Although individuals can, at present, gain access to an increased range of remedies for the protection of their human rights than ever before, while these available remedies remain weak, the intervention of the national’s State will retain its position of the most effective remedy, which cannot simply be abandoned. 3. Diplomatic Protection and the Challenges Raised by the Individual Orientated Evolution of International Law 3.1 Definition Diplomatic protection is the procedure employed by the State of nationality of the injured individual against another State to secure protection of that person and to obtain reparation for the internationally wrongful act inflicted. 26 While the intention is not to define diplomatic protection, the presence of this definition allows configuration of the central elements that characterize diplomatic protection and through which it is then possible to construct an understanding of the position of the individual in post-codification diplomatic protection. The analysis is, therefore, based on the following aspects further delineated below. 3.2 The (Indispensable) Fiction in Diplomatic Protection and the Distinction Between Primary and Secondary Rules of International Law In doctrine one of the most controversial aspects of diplomatic protection concerns the question of whose rights are being asserted when the State of nationality invokes the responsibility of another State for injury caused to its national. 27 The traditional view maintains that, when the State of residence infringes the human rights of aliens, it is the rights of the State of nationality which are prejudiced. Thus, the traditional criticism surrounding the institution of diplomatic protection relates to the fact that international law has fabricated a fiction concerning the injury to aliens: the damage to the individual is also deemed as a damage to the national State itself, thereby, entitling it to pursue the claim. 28 Indeed, diplomatic protection is based on a fiction, which appears to be an indispensable element, though its application received significant attention and discussion. 29 In order to understand the value of the fiction, one must investigate the function of the fiction within diplomatic protection. As indicated above, the willingness of States to relinquish their exclusive legal regulation of individuals in international law was very limited. Hence, when individuals 26 For more details, see ILC Reports on diplomatic protection. 27 John Dugard, “Diplomatic Protection”, in: James Crawford, Alain Pellet, Simon Olleson (eds.), The Law of International Responsibility , Oxford University Press, 2010, at p. 1052. 28 See ILC Report 2006, Commentary to draft Art. 1: “[o]bviously it is a fiction”, at p. 25. 29 The legal fiction in diplomatic protection has generated debates in the ILC and raised points of discussion in the comments and observations by States on the draft articles prior to the second reading.

187