International law, Sixth edition
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International Law MALCOLM N. SHAW
Diplomatic protection and nationality of claims
200 The doctrine of state responsibility with regard to injuries to nationals rests upon twin pillars, the attribution to one state of the unlawful acts and omissions of its officials and its organs (legislative, judicial and executive) and the capacity of the other state to adopt the claim of the injured party. Indeed article 44 of the ILC Articles provides that the responsibility of a state may not be invoked if the claim is not brought in accordance with any applicable rule relating to nationality of claims. 201 Nationality is the link between the individual and his or her state as re- gards particular benefits and obligations. It is also the vital link between the 194 Yearbook of the ILC, 1976, vol. II, pp. 102–5. Note also the Report of the International Law Commission, 1994, A/49/10, pp. 329 ff. and ibid., 1995, A/50/10, pp. 93 ff. 195 See Crawford, Articles, pp. 17 ff. for a critical analysis of draft article 19 and a discussion of subsequent developments. 196 See above, chapter 3, p. 123. 197 Article 40(2) describes a breach as serious if it involves a gross or systematic failure by the responsible state to fulfil the obligation. 198 Examples given of peremptory norms are the prohibitions of aggression, slavery and the slave trade, genocide, racial discrimination and apartheid, and torture, and the principle of self-determination: see ILC Commentary 2001, pp. 283–4. 199 See, as to examples of non-recognition, above, chapter 9, p. 468. Article 41(3) is in the form of a saving clause, providing that the article is without prejudice to other consequences referred to in Part Two of the Articles and to such further consequences that such a breach may have under international law. 200 See e.g. Oppenheim’s International Law, p. 511; Nguyen Quoc Dinh et al., Droit Interna- tional Public, p. 808; Brownlie, Principles, pp. 459 ff., and A. Vermeer-K¨unzli, ‘A Matter of Interest: Diplomatic Protection and State Responsibility Erga Omnes’, 56 ICLQ, 2007, p. 553. See also F. Orrego Vicu˜na, ‘Interim Report on the Changing Law of Nationality of Claims’, International Law Association, Report of the Sixty-Ninth Conference, London, 2000, p. 631. 201 See ILC Commentary 2001, p. 304. s tat e r e s p o n s i b i l i t y 809 individual and the benefits of international law. Although international law is now moving to a stage whereby individuals may acquire rights free from the interposition of the state, the basic proposition remains that in a state-oriented world system, it is only through the medium of the state that the individual may obtain the full range of benefits available under international law, and nationality is the key. 202 The principle of diplomatic protection originally developed in the con- text of the treatment by a state of foreign nationals. However, the Interna- tional Court has pointed out that, ‘Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, origi- nally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights’. 203 The International Law Commission adopted Draft Articles on Diplo- matic Protection in 2006. 204 Article 1 provides that, for the purposes of the draft articles, diplomatic protection consists of the invocation by a state, through diplo- matic action or other means of peaceful settlement, of the responsibility of another state for an injury caused by an internationally wrongful act of that state to a natural or legal person that is a national of the former state with a view to the implementation of such responsibility. 205 A state is under a duty to protect its nationals and it may take up their claims against other states. Diplomatic protection includes, in a broad sense, consular action, negotiation, mediation, judicial and arbi- tral proceedings, reprisals, a retort, severance of diplomatic relations, and economic pressures. 206 There is under international law, however, no obligation for states to provide diplomatic protection for their nationals 202 See further on nationality, above, chapter 12, p. 659. Note also the claim for reparations made by Croatia in its application of 2 July 1999 to the International Court against Yugoslavia in the Application of the Genocide Convention case both on behalf of the state and ‘as parens patriae for its citizens’, Application, pp. 20–1. 203 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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