Draft additional protocols to the geneva conventions of august 12, 1949. Thats because diplomatic protection is a mechanism under international law that a state can use to help one of its nationals whose rights have been breached in. Ii exercising diplomatic protection the fine line between litigation, demarches and consular assistance introduction one of the last draft articles that was proposed by the special rapporteur. This protection was highlighted by adding the phrase and documents to the initial draft of article 24, although documents are covered by the broader term.
In international law, diplomatic protection or diplomatic espousal is a means for a state to take diplomatic and other action against another state on behalf of its national whose rights and interests have been injured by that state. At its sixtyfirst session, the general assembly took note of the draft articles on diplomatic protection, adopted by the international law commission at its fiftyeighth session, in 2006, and. Help wikipedia improve by adding precise citations. Jun, 20 do email and edocuments have diplomatic protection. This paper discusses ilc draft article 8 on diplomatic protection. Nazanin zaghariratcliffe legal opinion ii availability. Notwithstanding paragraph 1, diplomatic protection may be exercised by a state in respect of a person that is not its national in accordance with draft article 8.
Diplomatic protection is often considered to involve judicial proceedings. Rather, it is an evaluation of the draft articles and the extent to which they advance human rights, from the perspective of the special rapporteur responsible for initiating them. Any views expressed are solely those of the author or publisher. Unhcr draft articles on the protection of stateless persons and the facilities for their naturalisation february 2017 5. The ilc has however decided not to endorse this view and has rejected the use of force as a means of diplomatic protection. Diplomatic mission or consular post shall be registered with the diplomatic protocol on the basis of its verbal note which should provide all relevant information and contacts address, telephone and fax numbers, email address, working hours, diplomatic staff, etc. The text of the draft articles with commentaries thereto adopted by the commission at its fiftyeighth session are reproduced below. The effect of this condition is to turn diplomatic protection into a subsidiary mechanism. Diplomtic ltlmwities and prn7leges the diplomatic immunities and privileges act sch, 36 of zob4. International law commission by denver journal of international law and policy. Text adopted by the international law commission at its fiftyeighth session, in 2006, and submitted to the general assembly as a part of the commissions report covering the work of that session a6110. Text of the draft articles with commentaries thereto 50. Traditionally, the term state responsibility referred only to state responsibility for injuries to aliens.
A state can only provide diplomatic protection and seek a remedy or file a complaint if the person concerned has already exhausted all local remedies to the extent possible and as could be reasonably expected. Internationally wrongful acts the ilc draft articles on diplomatic protection from lcp 4801 at university of south africa. Diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a state adopting in its own right the cause of its national in. States, states having no seacoast should have free access to the sea. It included not only secondary issues such as attribution and remedies, but also the primary rights and duties of states, for example the asserted international standard of treatment and the right of diplomatic protection. My friendship of nearly 40 years with ivan shearer is born of international law. The report, which also contains commentaries on the draft articles, will appear in yearbook of the international law commission, 2006, vol. The diplomatic protection of refugees by their state of.
Oct 17, 2017 it represented the first significant codification of any international instrument since the united nations was established. This act may be cited as the diplomatic immunities and shorttitle. While the international law commission, in its draft articles on diplomatic protection acknowledged this legal fiction, it continues to be the subject of debate and criticism. Powerful states used the rules against weaker ones to enforce rights of their nationals who had failed to. Abuse of diplomatic privileges and the balance between. Nationality came during the nineteenth century to be regarded as conferring an entitlement to diplomatic protection by the national government. Apr 28, 2017 responsibility of states for internationally wrongful acts 2001 text adopted by the commission at its fiftythird session, in 2001, and submitted to the general assembly as a part of the commissions report covering the work of that session. Draft articles on diplomatic protection, with commentaries 2006.
The term diplomatic agent referred only to the head of mission but now the term also includes members of staff. For the purpose of the present draft articles, diplomatic protection consists of the invocation by a state, through diplomatic action or other means of peaceful settlement, of the responsibility of another state for an injury caused by an internationally wrongful act of. The application of the draft articles on diplomatic protection in the ahmadou sadio diallo case volume 20 issue 4 annemarieke vermeerkunzli. However, despite the codification of the above rules, which is largely based on the preexisting customary international law, the scope of diplomatic protection was not free from issues and controversies. May 2017 learn how and when to remove this template message. Article 1 of the draft articles on diplomatic protection of the international law commission. Unhcr is not responsible for, nor does it necessarily endorse, its content. The wrongfulness of an act of a state not in conformity with its international obligations to another state is precluded if and to the extent that the act constitutes a countermeasure directed towards the latter state under the conditions set out in articles 50 47 to 55 48.
Diplomatic protection 1 the drafting of articles on diplomatic protection was originally seen as belonging to the study on state responsibility. Use of diplomatic protection to prosecute perpetrators of xenophobic attacks in south africa. Text adopted by the international law commission at its fiftyeighth session, in 2006, and submitted to the general assembly as a part of the commissions report covering the work of that session. The references in this article are unclear because of a lack of inline citations. Dugard, john diplomatic protection and human rights. Yet, a closer look at the legal fiction reveals that it enables the application of secondary rules the rules on diplomatic protection to a violation of a primary rule. The report, which also contains commentaries on the draft articles, appears in official records of the. Article 4 state of nationality of a natural person. Jovan kurbalija jun 20 ediplomacy a bit longer answer could be prompted by questions why, over the last few days, have we not heard news about ambassadors presenting demarches in washington, with reasonable doubts whether their emails have been intercepted. Pdf use of diplomatic protection to prosecute perpetrators. Nationality and diplomatic protection springerlink. Argues that diplomatic protection is an appropriate mechanism for the protection of individual human rights. After lisbon a reshuffle for the consular and diplomatic protection of the eu citizens.
Introduction diplomatic protection is one of the oldest rights of a state in international law. The draft articles of the international law commission. Borchard, the diplomatic protection of citizens abroad, new york 1919, at 448. So it is important to research on draft articles on diplomatic protection in order to protest our countrys nationals whose rights were infringed upon by another country for violating international law in. Refworld draft articles on diplomatic protection with. In what follows, the term action with respect to diplomatic protection will be analysed through a discussion of legal writing, international and national decisions and the ilc draft articles on diplomatic protection.
The effect of this condition is to turn diplomatic protection into a. Draft articles on diplomatic protection 2006 text adopted by the international law commission at its fiftyeighth session, in 2006, and submitted to the general assembly as a part of the commissions report covering the work of that session. Draft articles on diplomatic protection, with commentaries. Protection of objects indispensable to the survival of the civilian population 160. Using the url or doi link below will ensure access to this page indefinitely. Diplomatic protection conducted by a state at interstate level remains an important remedy for the protection of persons whose human rights have been violated abroad. Comments on ilc draft articles on state responsibility. International law, diplomatic protection, refugee law, human rights. Accordingly, draft article 19 apd, in relevant part, declares that. The present article on diplomatic protection is not a description of the draft articles on diplomatic protection, adopted by the ilc at first reading in june 2004. As will be shown, the ilc has tried to find a balance by retaining the fiction in draft article 1 but adding an exhortatory provision in draft article 19.
Draft articles on diplomatic protection with commentaries 2006 text adopted by the international law commission at its fiftyeighth session, in 2006, and submitted to the general assembly as a part of the commissions report covering the work of that session a6110. Diplomatic protection, which has been confirmed in different cases of the permanent court of international justice and the international court of justice, is a. Human rights eu citizens entitlement ilc draft articles. Instead it describes the salient features of diplomatic protection in the sense in which the term is used in the present draft articles. Diplomatic protection and the international court of justices decision on preliminary objections. So it is important to research on draft articles on diplomatic protection in order to protest our countrys nationals whose rights were infringed upon by another country for violating international law in accordance with general. As states tend to classify certain actions as falling within consular assistance rather than diplomatic protection. Diplomatic conference on the reaffirmation and development.
Titles and texts of draft articles adopted by the drafting committee, acn. In the last 30 years, individuals have increasingly filed complaints against their national governments for failure to exercise diplomatic protection on their behalf, in particular in cases of serious violations of international human rights law. Internationally wrongful acts, the ilc draft articles on diplomatic protection and the ilc draft articles on responsibility of international organisations and apply those provisions to practical situations. In international law, diplomatic protection is a means for a state to take diplomatic and other action against another state on behalf of its national whose rights and interests have been injured by that state. Responsibility of states for internationally wrongful acts. While the international law commission, in its draft articles on diplomatic protection acknowledged this legal fiction, it continues to be the. Article 1 of the vienna convention divides diplomatic staff into.
The report, which also contains commentaries on the draft articles, appears in official records of the general assembly, sixty. As noted by the international law commission ilc in its draft articles on. Ii exercising diplomatic protection the fine line between litigation, demarches and consular assistance introduction one of the last draft articles that was proposed by the special rapporteur to the international law commission for inclusion in the draft articles on. On the question of human rights and diplomatic protection, his delegation shared the view that the two institutions should not be specifically linked in any draft articles on diplomatic protection. Diplomatic protection and human rights kings blogs. The legal fiction in diplomatic protection european journal. The starting point in discussing diplomatic protection of dual nationals is the 1930 hague convention. Posted on january 17, 2010 by edecapitani will the treaty of lisbon, the new stockholm programme and the new figure of the european union high representative wake up the sleeping beauty of the consular and diplomatic protection of the european citizens. The standard rule, as reflected in the international law commissions draft articles on.
In international law, diplomatic protection or diplomatic espousal is a means for a state to take. The article concludes that dual nationality is no bar to diplomatic protection in. In recent years,the area of diplomatic protection has been the subject of much work by the ilc,who produced a set of draft articles on diplomatic protection in 2006. Early efforts by the league of nations and private. Diplomatic protection is primarily exercised by states towards their nationals, and exceptionally nonnationals, against violations of international law by other states, and is one of the oldest. The report, which also contains commentaries on the draft articles, appears in. Internationally wrongful acts the ilc draft articles on. Ii exercising diplomatic protection universiteit leiden. Do email and edocuments have diplomatic protection. Because the aim of the draft articles on diplomatic protection was to protect people from illegal acts by states, it needed to be given the same importance as the draft articles. Copies of proposals are published in the nec rop for the 20 annual revision cycle.
Text adopted by the international law commission at its fiftyeighth session, in 2006, and submitted to the general. The limiting effect of the process of diplomatic protection no general substitution of investor for investment art 11, international law commission, draft articles on diplomatic protection 2006 limited conception of direct rights of shareholder no development of substantive law on treatment of investments of aliens 2. The commissions 2006 session also finalized draft articles on diplomatic protection, meaning the procedures to be used by a state when one of its nationals is injured by another state in contravention of international law. Commission in articles 2 and 19 of its recent draft articles on diplomatic protection, adopted in 2006. International relations political science disaster victims laws, regulations and rules humanitarian aid. Articles on diplomatic protection 2006 march 31, 20 what does diplomatic protection mean.
It represented the first significant codification of any international instrument since the united nations was established. The report, which also contains commentaries on the draft articles, appears in yearbook of the. Apr 28, 2017 draft articles on diplomatic protection 2006 text adopted by the international law commission at its fiftyeighth session, in 2006, and submitted to the general assembly as a part of the commissions report covering the work of that session. See draft articles on diplomatic protection, draft article 1. Diplomatic protection of dual nationals in the european journal of. Diplomatic missions are entitled to free communication, and free also includes free from surveillance. After lisbon a reshuffle for the consular and diplomatic. He introduces the argument to show that the procedures in a bit will apply as lex specialis with regard to diplomatic protection. The legal fiction in diplomatic protection european. Pdf nationality and diplomatic protection researchgate.
In the uk, both consular assistance and diplomatic protection are not enshrined in uk law but instead are regulated as a matter of policy. Article 36 provides that consular officials are free to communicate with nationals of. Should a requirement of clean hands be a prerequisite to. A state entitled to exercise diplomatic protection according to the present draft articles, should. Draft articles on the protection of stateless persons and the. Diplomatic protection is undoubtedly an important tool in human. Responsibility of states for internationally wrongful acts 2001 text adopted by the commission at its fiftythird session, in 2001, and submitted to the general assembly as a part of the commissions report covering the work of that session. Oct 20, 2010 sixtyfifth general assembly sixth committee 16th meeting am legal committee discusses ways to apply law commission draft articles on diplomatic protection. Legal committee discusses ways to apply law commission draft. Provides an indepth analysis of the nature of diplomatic protection, the modalities of its exercise, its relation to the general law of state responsibility, and its application in practice in current international law. I first met ivan in 1966 when he visited south africa in the course of a research project into succession to treaties, under the guidance of d p oconnell. Diplomatic protection and state responsibility 555 the nature of the violated rule, as the icj seemed to indicate, is in any event not feasible. Legal committee discusses ways to apply law commission. In what is written above, the expression diplomatic protection is used in its formal sense, as defined by the international law commission in its draft articles as meaning the invocation by a state, through diplomatic action or other peaceful means, of the responsibility of another state for an injury caused by an internationally.