CYIL 2014

DIANA CUCOS CYIL 5 ȍ2014Ȏ do not possess the international “capacity … [to] bring an international claim against … another direct subject of international law”, 30 the only remaining means to elevate the dispute to the international arena is for the State of nationality to espouse the claim of its national. The lack of remedies makes the individual dependent on his State of nationality. Thus, when courts do not recognize the capacity for individual access, one needs a necessary fiction to link the injury with the claim, because, procedurally, only the State of nationality can bring an international claim against the foreign State. Although when espousing a claim the State makes its own what originally belonged to the individual, once the claim is brought, from the perspective of international law, the State is the only claimant. The draft article 1 of the ILC draft articles on diplomatic protection, adopted on first reading, stipulated that States adopt in their own right the injury sustained by their national. 31 This strongly reflects the fictitious nature of diplomatic protections. It is also embodied in the dictum in the Mavrommatis Palestine Concessions case. The decision in Mavrommatis relies on what is often called the “Vattelian” fiction or formula. Writing in 1758 the Swiss jurist Vattel stated that: “Quiconque maltraite un Citoyen offense indirectement l’Etat, qui doit protéger ce Citoyen. Le Souverain de celui-ci doit venger son injure, obliger, s’il le peut, l’aggresseur à une entière réparation, ou le punir; puisqu’autrement le Citoyen n’obtiendroit point la grande fin de l’association Civile, que est la sûreté” . 32 If the foreign individual cannot obtain appropriate satisfaction at the level of local remedies, then, according to the authoritative statement of Vattel, diplomatic protection allows the national State to “take up the case of its subject” , as the State suffers from the injury caused to its national abroad. This fiction allows the State to seek reparation for this injury, through the mechanism of diplomatic protection, as the injuries suffered by nationals abroad are attached to their State of origin. The traditional view is based on the idea that international obligations have an inter-State character, and, thus, may only be owed to States, an approach confirmed by the International Court of Justice (ICJ) in its decision in the Reparation case, where it considered that the rule inhering diplomatic protection rests on the bases that “the defendant State has broken an obligation towards the national State in respect of its national [and] that only the party to whom an international obligation is due can bring a claim in respect of its breach”. 33 It also reflects the position that the State 31 Diplomatic Protection – titles and texts of the draft articles on Diplomatic Protection adopted by the Drafting Committee on first reading, International Law Commission 56 th session, A/CN.4/L/647 (2004), at p. 1. Later the commentary to the articles on diplomatic protection, adopted by the ILC on second reading in May 2006, stated that diplomatic protection is based on a fiction: the injury to an individual is treated as if it constitutes an injury to the individual’s national State, thereby entitling the national State to espouse the claim. See ILC Report 2006, Commentary to draft Art. 1, at p. 25. 32 E. de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle , à Leiden aux Dépens de la Compagnie, 1758, Vol. I, book II, para. 71. 33 Reparations for injuries suffered in the service of the United Nations , supra note 30, at pp. 181-182. 30 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Reports, at p. 177, 178.

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