CYIL 2014

THE POSITION OF THE INDIVIDUAL IN POSTǧCODIFICATION DIPLOMATIC PROTECTION considerations of a political or other nature, unrelated to the particular case… The State enjoys complete freedom of action” . 44 In this view a State has the right to exercise diplomatic protection without being required to provide justification for its decision, and any renunciation by an individual of diplomatic protection is void, since the national’s State can override it and take up their national’s case, albeit against his will. 45 The traditional approach also indicates that determinants underlying the decision (not) to exercise diplomatic protection may vary depending on each particular case and may rely solely on distinct policy considerations entirely different from the interests of the directly injured individual. 46 Furthermore, once a State has espoused a claim, it has a discretionary power over the manner in which the claim is pursued, and the individual is entitled to no international right regarding the claim. It is traditionally considered that the individual has no remedy under international law if he is not satisfied with the manner in which the protection was carried out. The ICJ expressed this in its decision in the Barcelona Traction case: “[S]hould the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions. However, all these questions remain within the province of municipal law and do not affect the position internationally” . 47 In conformity with this approach, the individual has no means to oblige his State of nationality to exercise diplomatic protection or to prevent a willing State from exercising it through waivers. Internationally, the State has no obligation to exercise diplomatic protection, but once granted, it may take into account the interests of the individual, or may even grant him related rights under its own national law. Many States inserted in their Constitutions the right of the individual to receive diplomatic protection for injuries suffered abroad. 48 The manner in which this right is enforceable in the domestic courts is far from clear, particularly in the case of former communist States where this right is more a constitutional embellishment. 49 On the other hand, 44 Case Concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain), Judgment, 1970 ICJ Reports, at p. 44, para. 78. 45 It should be noted that this situation may raise problems at the stage of the exhaustion of local remedies, since the individual cannot be bound to solicit them, thus preventing his own State from espousing the claim. 46 Berlia, G., “Contribution à l’étude de la nature de la protection diplomatique”, Annuaire Français de Droit International , Centre National de la Recherche Scientifique, 1957, III, pp. 63-72, at p. 65. 47 Case Concerning the Barcelona Traction, supra note 44, at p. 44, para 78. 48 For example, Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People’s Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the Former Yugoslav Republic of Macedonia, Turkey, Ukraine, Vietnam. 49 John Dugard, “Diplomatic Protection and Human Rights: The Draft Articles of the International Law Commission”, Australian Year Book of International Law , 2005, Vol. 24, at p. 81.

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