CYIL 2014

DIANA CUCOS CYIL 5 ȍ2014Ȏ to the interest of the individual, and the complementariness of the interests of the individual and national State within the framework of diplomatic protection. This enlarged view of diplomatic protection was repeatedly and explicitly emphasized by the ICJ, including the recent Ahmadou Sadio Diallo case, where the Court stated that “the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights” . 63 The traditional discretionary character of diplomatic protection is more frequently challenged by the present realities of international law. The individual’s limited procedural rights under international law and the ineffectiveness of the available mechanisms have led to the view that the national State should have a particular duty to protect its injured national and act on his behalf when asserting his claim, attempting, thus, to support the view that the right to diplomatic protection is a human right. 64 However, at the current stage of international law, what Borchard suggested, in 1915, still remains pertinent: “if it is a duty internationally, it is only a moral and not a legal duty, for there is no means of enforcing its fulfillment”. 65 Despite some signs in contemporary international practice of the widening of the scope of diplomatic protection, this “means” still remains in the form of an instrument in the hands of the national State of the injured individual. The only progressive development in this regard is the provision of Article 19 that recommends and invites States to consider the relevance of diplomatic protection in case of significant injury, to consider the views of the individual and to transfer any compensation obtained to the injured individual. 66 Conclusions It remains evident that, even in the contemporary international system, international law maintains an inter-State legal order in which only the States retain the certainty to successfully pass the test of the international legal personality. Nevertheless, contemporary practice does indicate that individuals have gradually been accorded the role of participants and even as (limited) subjects of international law when they have the “capacity to act”. This is primarily the product of the development of human rights law. Despite, though, the considerable effort taken by international law to grant individuals their necessary procedural rights, the standing of the individuals in international law has only advanced with the limits conferred by States through treaties. 63 Ahmadou Sadio Diallo case (Republic of Guinea v. D.R. Congo), Judgment, (Preliminary Objections), 2007 ICJ Reports, para. 39. 64 J.-F. Flauss, supra note 4, at pp. 35-36. 65 E. Borchard, Diplomatic Protection of Citizens Abroad , New York, The Banks Law Publishing Co., 1915, at p. 29. 66 Diplomatic Protection, Titles and texts of the Draft Articles adopted by the Drafting Committee on second reading, A/CN.4/L.684 (2006), Article 19.

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