CYIL Vol. 5, 2014

DIANA CUCOS CYIL 5 ȍ2014Ȏ a mere object 2 to a habitué 3 of international law. These continuous developments of international law have encouraged scholars to review the individual’s status in various areas of international law and prompted a number of pertinent questions: what is the position of the individual under human rights law 4 or investment law; should it now be acknowledged that individuals can have obligations under international law that extend beyond the individual responsibility for international crimes under international law; 5 how has international humanitarian law developed with respect to individuals; and last, but not least, what is international law´s engagement with the individual in diplomatic protection claims. 6 This paper tackles the issue of the status of individuals in post-codification diplomatic protection, taking into consideration codification and the progressive development of the law on diplomatic protection and relevant jurisprudence in the field. To this end, the research is based on the Draft Articles on Diplomatic Protection, 7 adopted by the International Law Commission (ILC) in 2006, 8 commentaries on the Draft Articles and the Reports of the second Special Rapporteur, John Dugard. 9 2 Even from the beginning of the 19 th and early 20 th centuries, the issue of the position of the individual in international law has received international legal doctrinal attention, even if individuals were conceived as mere objects to a system. 3 Nowadays, the individual has shifted his position to the central circles of international law. 4 The development of human rights law in the second half of the past century marked the standing of individuals before international fora. For a perspective on the procedural status of individuals in the European Convention of Human Rights, see Alberto M. Aronovitz, “The Procedural Status of Individuals in Diplomatic Protection and in the European Convention on Human Rights: A Comparative Study”, Revue de droit comparé , 1994, Vol. 28, afl. 4, at pp. 15-53; J.-F. Flauss “Protection Diplomatique et Protection Internationale des Droits de l’Homme”, Revue Suisse de Droit International , 2003, no. 1, at pp. 1-36. 5 Andrew Clapham, “The Role of the Individual in International Law”, EJIL , 2010, Vol. 21, No. 1, pp. 25-30, at p. 25. 6 For a broader picture of the status of the individual in the international legal system, see Kate Parlett, The Individual in the International Legal System. Continuity and Change in International Law , Cambridge University Press, 2011. 7 The institution of diplomatic protection developed and established itself both in practice and doctrine during the 19th century. In 1996, he ILC identified the topic of “Diplomatic protection” as one of the topics appropriate for codification and progressive development. See Official Records of the General Assembly, 51st Session, Supplement No. 10 (A/51/10), para. 249, and annex II, Addendum 1. In the process of codification, the customary law approach to diplomatic protection formed the basis for the work of the ILC, while also taking into account the development of international law in increasing recognition and protection of the rights of individuals and in providing them with more direct and indirect access to international forums to enforce their rights. See John Dugard, First Report on Diplomatic Protection, United Nations, Document A/CN.4/506 (7 March 2000), para. 4. 8 Report of the International Law Commission, 58 th Session, 2006, Supplement No. 10 (A/61/10). 9 John Dugard is with certitude one of the most qualified publicists that had an impact on doctrine and the law in general and has contributed much to the successful conclusion of the codification project of diplomatic protection in particular. He received the ILC’s well-deserved recognition for his effective role: “The Commission […] expresses to the Special Rapporteur, Mr. Christopher John Robert Dugard, its deep appreciation and warm congratulations for the outstanding contribution he has made to the preparation of the Draft Articles through his tireless efforts and devoted work, and for the results

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