CYIL 2014

DIANA CUCOS CYIL 5 ȍ2014Ȏ that, while fictions clearly are an alteration of reality, they should not be dismissed out of a “disdain for the use of fictions in law”, 41 in particular, when the “institution, like diplomatic protection” relying on a fiction “serves a valuable purpose”, 42 that is, the protection of human rights. The fiction is no more than a means to an end, the end being the maximal protection of individuals against violations of international (human rights) law. In its difficult task the ILC had decided on a balance by retaining the fiction in draft article 1, but adding an exhortatory provision in draft article 19. This solution may advance the position of the individual and, thereby, constitute a progressive step away from the rigid Mavrommatis régime. It does not, however, affect the fictitious nature of diplomatic protection. It seems that the fiction continues to be an indispensable tool for the protection of individual rights, in particular considering the limited agency individuals have under contemporary international law. 3.3 The Issue of Mixed claims Diplomatic protection stipulates that an injury to an individual by a foreign State is actionable by the State of nationality of the injured individual. The injury of individual rights stands, of course, at the foundation of the granting of diplomatic protection. However, there is also a practice of so-called “mixed claims”, i.e., when the claim is based on both direct and indirect injury. For mixed claims in diplomatic protection the predominant position is to refer to the LaGrand and Avena cases before the ICJ. It should be borne in mind that the prerequisites for granting diplomatic protection, such as the exhaustion of local remedies and the nationality of claims, are applicable only for the part of the claim that is based on indirect injury. Even if the claim also incorporates elements of direct injury, the preconditions for granting diplomatic protection will be applicable only to the indirect part of the claim. 43 Under international law, when asserting the State’s own claims, based on its own direct injury, claims can be brought directly and do not require the instrument of diplomatic protection. 3.4 Diplomatic Protection: A Discretionary Right of the State The decision whether or not to exercise diplomatic protection is traditionally of a discretionary nature. Indeed, no instrument of international law, whether in the past or present, contradicts what was clearly stated by the ICJ in the Barcelona Traction case: “Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting.[…] The State must be viewed as the sole judge to decide whether its protection will be granted, and to what extent it is granted, and when will it cease. It retains in this respect a discretionary power the exercise of which may be determined by

41 Ibid. para. 18. 42 Ibid, para. 21.

43 Interhandel case (Preliminary Objections) (Switzerland v United States of America), 1959 ICJ Reports, at p. 6 and Elettronica Sicula S.p.A. (ELSI) case (United States of America v Italy), 1989 ICJ Reports, at p. 15.

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