cae ye NIJHOFF “he Law and Practice of kP BUetisieRs International Cours and Tribunak 7 (2008) 33-58 The Second Death of Euripide Mavrommatis?! Notes on the International Law Commission's Draft Articles on Diplomatic Protection Alain Pellet Professor, University of Paris Ouest, Nanterre-La Défense Member and former President of the International Law Commi Abstract In 2006 the International Law Commision adopted a set of Draft Articles on Diplomatic Pro- tection that representa departure from the traditional *Mavrommatis Fiction’ which had par- terned the institution ever since the Permanent Court of Tnternational Justice rendered its judgment in the Maorommatis Palestine Concesions case. These “Notes” on the ILCs Draft Arti- les on Diplomatic Protection describe in detail how that “fiction” functioned and how the ILCs efforts have been instrumental in bringing about its slow, but sure, abandonment. Keywords ‘Avena and Other Mexican National; Calvo Clause: Diplomatic Protection; exhaustion of local remedies; International Law Commission; Lagrand: Permanent Court of Intemational Justice (PCI); MaorommatisPelesine Concesion, Sate responsibility 1. The International Law Commission, which included the topic “iplo- matic Protection” in its agenda in 1997, adopted seven years later on this theme, on first reading, an extremely disappointing, incomplete and tedious set of draft articles, confined to ratifying the most classic and out- dated vision of this legal institution.” Although the Draft Articles retained The author wishes to thank Daniel Miller, Ph.D. candidate atthe University of Paris Ouest, Nanterre-La Defense and the Humboldt- Universitit xu Bedln, researcher atthe CEDIN, fo his help in rescarching what allowed this article to be written. ° ‘The frst name of the holder of the “Mayrommatis Concessions” appeared in the judgment of the PCL). of 26 March 1925, *Maorommatis Jerwalem Concesion’, Series A, No. 5, p. U1. 1 ‘ould not find the date ofthe death of Mavrommatis, bt there is no doube that this occurred a long time before the adoption of the Draft Articles by the International Law Commission. Alain Palee“Le projet atclesde la C.D.L sur l protection diplomatique~ Une codification (© Koninklijke Beil NY Leiden, 2008 DOE: 10.1163/157180308X33275734. Pallee/ The Law and Practice of International Cours and Tribunals 7 (2008) 33-58 on second reading in 2006 still leave a lot to be desired, they also contain alot that can be forgiven. Whilst, against all reason, the text of 2004 clung, to the “Mavrommatis fiction”, the final Draft Articles distance themselves from it somewhat and open the door to fundamental evolution in order to put the revered institution that they claim to codify in step with interna- tional law in the 21st century. I. The Traditional Fiction 2. As it is traditionally conceived, diplomatic protection relies on a “fiction”, a ‘process of legal technique by which we qualify a situation (...) in a manner contrary to reality, (...) with a view to attributing to it the legal consequences of the fictional qualification”.« And there is no doubt that that is cxactly the function of the intellectual construction established by the Permanent Court's legendary formula, repeated on numerous occa- sions,° according to which: pour (presque) rin”, in: Marcelo Kohen (ed), La promotion dela juatice, des droits de Vhomme ct du riglement des confits par le droit international — Liber Amicorum Lucius Caflisch, Leiden, Koninklijke Brill NV, 2006, pp. 1133-1155. In cerein respects the present article, which was fist published in French (*La seconde mort d'Euripide Mavrommatis ? Notes sur le projet dela C.DAL sur la protection diplomatique”, Droit du puso, powvair du droit ~ Melange ofee a Jean Salmon, Brustant, Bruxelles, 2007, pp. 1359-1382) consticutes an update ofthis scudy For the text and the commentary ofthe Articles adopted in 2006, se the Report ofthe lncer national Law Commission on the work ofits FifyFighth Session (2006), General Assembly, Official Reconds, 615 Sesion, Supplement No. 10 (A/61/10), pp. 16-100. * Jean Salmon, “Le fait dans Vapplicaion du droit intemational”, 175 Recueil des Cours 257— 414 (198211) at 290 (our translation of “procédé de technique juridique par lequel on qualife tune situation (..) de manire contrare au él, (,..) en vue de lui attribuer les consequences juridiques de la qualification fictive"); se also J. Salmon, “Le procédé de la fiction en droit inter rational public” in Ch. Perelman and P. Fociers (eds), Les présomptions et ls ftions en droit, Bruylant, Brussels, 1974, pp. 114-143; alo in 10 RBD.L. 11-35 (1974), » CE PCJ. Judgments of 12 July 1929, Serbian Loans, Series A, Nos. 20-21, p. 17, and 28 February 1939, Pancvesys-Saldutiskis Railway, Seies A/B, No. 76, p. 16; oF LC). Judgments (0f 6 April 1955, Nottebobm, CJ. Report 1955, p. 24 5 Febuary 1970, Barcelona Traction, Light and Power Company, Limited, LLC. Report 19/0, pp. 32-38, paras. 35-36; 31 March 200, “Avena and other Mexican Nationals, LCJ. Reports 2004, pp. 35-36, para. 40, See also the definition cof functional protection that the LC]. provides in its Advisory Opinion of 11 April 1949 con- cerning Reparation fr Injuries Suffered in the Service of the United Nations, LCJ. Repors 1949, pp. 181-184. Sce alo US-Mexico General Clims Commission, Dickson Car Wheel and Ca, 1931,4 RIAA. p. 669; ran-US Claims Tribunal, Decision n° 32-A18-FT, Question of urisdic. sion over Claims of Perons with Dual Nationality, 6 April 1984, 5 Iran-US CTR 251 (1984-1); 25Pelle |The Law and Practice of international Courts and Tribunals 7 (2008) 33-58 35 By taking up the case of one ofits subjects and by resorting to diplomatic action or inter- national judicial proceedings on his behalf, a State is in reality aserting its own rights ~ its tight ensure, in the person ofits subjects, respect for the rules of international law 3. However, it is necessary to understand the exact content of this fiction as the formula is rather ambiguous. According to the leading interpreta- tion,” the PC.1J. confirms two very different things in this remarkable maxim: — in the first place, the exercise of diplomatic protection is a right belong- ing to the State whose national is the person injured by the internation- ally wrongful act of another State; and — in the second place, when it is exercised, the State is relying on “its own rights” (‘son droit propre”). 4, The first point does not pose a problem: “it is ordinarily accepted that diplomatic protection is a discretionary act of the accredited State”? It is well established in jurisprudence like in practice, and this principle is enshrined in Article 2 of the L.L.C. Draft Articles relating to the “Right to exercise diplomatic protection” LM, 498 (1984); Cass. Civ, 14 June 197, Société européenne d'études et enterprises, Ball, 1° 277, p. 219: J.DA. 1977, p. 864, report Ponsard, note B. Oppetit; and RCD.LP, 1978, p-710 (note L. DuBouis, p. 615 ~sce nfs, note 18). © CLL), Judgment of 30 August 1924, Mavrommatis Palatine Concesions,Seics A, No.2, » CED. Alland, Droit intenational public, PU, Pais, 2000, pp. 413-4145 1. Brow, Prin- ciple of Public International Law, 6th ed., Oxford University Press, 2003, p. 459: J. Combacau, S. Sur, Drie international public, Sth ed., Montchrestien, Paris, 2001, pp. 533-535: P-M, Dupuy, Droit international public, 7th ed., Dallor, Pars, 2004, p. 485; Sir Robert Jennings and Sit Arthur Wats, Oppenheimi Intemational Law, th ed, Longman, 1992, pp. 538-539: M, ‘Shaw, International Law, Sth ed.» Cambridge University Press, 2003, pp. 722-723; |. Seidl Hohenveldern and T. Stein, Valkerrecht, Wth ed., Heymanns, Cologne/Berlin/ Bonny Munich, 2000, pp. 329-331; J. Verhoeven, Droit international publi Larcer, Bruscls, 2000, p. 635. © "The wond “rights” is in plural in the English teat of the judgment, which confims that this does not concern the State’ right to exercise diplomatic protection but rather the rights that are the subject mater of the diplomatic action. Jean Salmon, Manucl de droit diplomarique, Bruylant, Brussels, 1994, p. 105, para. 154 (our translation of “[il est habituellement admis que la protection diplomatique ext un acte disré- tionnaire de Frat accréditane). In this work, the author adopts a large concept of diplomatic protection understood to be “un droit général des agents diplomatiques de proséger leurs nation- aux” (our translation: “a general right thar diplomatic agents have to protect their nationals”) (ibid. p. 104, para. 153: see also J. Salmon (ed.), Dictionnaire de dros international publi, BeuylandAUE, 2001, p. 904, “Protection diplomatique”, C, “sens élargi’)36 Peller The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 {A State has the right to exercise diplomatic protection in accondance with the present draft anil. 5. There we are not dealing with a “fiction” in the sense that, in reality, in “real” international life," the State is, in effect, “viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease”.!" Nonetheless, that is where, in contrast to what certain members of the I.L.C.” scemed to be thinking during the debates over Mr. Bennouna’s report in which he presented the major issues to be addressed," the juridical fiction came to nest. 6. ‘The fiction clings to the idea whereby, when it exercises its protec tion, a State is relying on “its own right”, whereas the right that it is protecting — and that the author of the internationally wrongful act violated is “ts right to ensure, in the person of its subjects, respect for the rules of international law”. On this basis, “diplomatic protection and pro- tection by means of international judicial proceedings constitute measures for the defence of the rights of the State”."* " Ic being understood that it is more dificult to demonstrate the existence (or non-existence) of a fiction “quand c'est un fait juridique qui ext ‘malmen€, car ce dernier test pas vrai ou faux, él ou ierél” (ibid, p. 504, *Rtion’) (Our trandlation: “when itis a legally significant fact which has been ‘misapplied’, because the fct is neither true no false, real nor unseal). LC. Judgment of 5 February 1970, Barcelona Traction, Light and Power Company Limited, (Belgium v. Spain), Second Phase, CJ. Reports 1970, p. 44, para. 78; European Commission of Human Rights, Decision of 2 May 1978, Berinond Russell Peace Foundation Lid. x UK (Applica- tion n° /59/1/6), D.R. 14, p- 131; ECHR. Decision of 11 July 2000, A.C. and others» aly Application 1° 40812/98); sce also the national jurisprudence cited by J. Salmon, op. cit, note 9, p. 105, para. 154, Jean-Francois Hauss, “Le contentieux des cisions de refus d’exerice de la prosection diplomatique”, 109 RCD.LP 412-417 (2005) and in Patrick Daillier and Alain Pellet, Dros international public (Nguyen Quoc Dinh), L.G.D-J» Paris, 2002, p. 814, para. 496, For the postions of different national legal systems conceming this question, see the contributions of Jean-Frangois Flauss (ed), La protection diplomatique, Mutations contemporaines ct prutiques nationals, Bruylant, Brussels, 2003, pp. /3 et sg. "9" Sce in particular the comments of Economides (LL-C. Yearbook 1998, Vol. 1, 2520th meet- ing, 28 April 1998, p. 7, para. 30), Simma (ibid. p. 9, para. 46-47 or IL.C. Yeerbook 2000, Vol. 1,2620¢h meeting, 12 May 2000, p. 66, para. 17) ot Kanto (iid, pp. 69-70, para. 44); for more acceptable conception, making the distinction between the two element ofthe Mavrom- ‘matis Formula, se for example: J. Dugard (LC. Yearbook 1998, Vol. I, 2521s meeting, 29 April 1998, ibid, pp. 14-15, para. 33) or A. Pellet (iid, 2523rd meeting, 1 May 1998, pp. 28-30, paras. 20-22 and 27). "Preliminary Report on Diplomatic Protection, International Law Com (1998), AICN.A/484, LC), Judgment of 6 April 1955, Novtebohm, LJ. Reports 1955, p. 4. jon, 50¢h sessionPellet | The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 37 7. This is, evidently, purely fictitious: — the act that sets the mechanism in motion is the violation of the right of the protected private person" and not by any means the right of the State which exercises the protection; — that right cannot arise until the protected person has exhausted all local remedies" (which means also that the person can, if he or she abstains, deprive the State of the possibility of exercising its “own right”); — ifthe protected person loses the nationality he or she had at the moment at which the internationally wrongful act takes place, the State can no longer exercise its protection (the rule of continuous nationality); — the harm suffered by the private individual constitutes the measure of the reparation which will be granted to the State on the basis of dip- lomatic protection. 8. That is, certainly, what “reveals all the contrivances of the legal con- struction in question”.'* Therein are found all of the ingredients of the legal fiction that Jean Salmon analysed in such masterly fashion.'? We act, “as if™ the State exercises its own right whereas in reality it represents the ” CE the frst article ofthe Draft Articles ofthe LLC. — sce inet para. 28. CE Article 14 ofthe Draft Articles ofthe LLC. " CE Antics 5, para. 1 (For individuals), and 10, para. 1 (for corporations), of the Draft Aicles of the LLC. "8 Mohamed Bennouna, Report sypne note 13, para. 27: see also M. Bennouna, “La protection diplomatique, un droit del'Exat”, in Bowers Boutres-Ghaliamicorum discipulorumaue liber — Paix, développement, démacraic, Bruylant, Brussels, 1999, pp. 247-248; Louis Dubouis, “La distinction entre le droit de tat wéclamant et le droit du ressortssant dans la protection diplo- matique (i propos de''areét rendu parla Cour de casation le 14 juin 19/7)", RCD.LP.19/8, ‘pp. 623-624; or paragraph 1) ofthe commentary on article ofthe draft articles on Diplomatic Protection adopted on frst reading by the LLC. in 2004 (Report of the LL.C. on the Work of its S6th Session (2004), General Assembly, Official Reconds, 39th sesion, Supplement No. 10 (4/59/10), p.27)- Acconling to Gerhard Hafner, “there was indeed a certain clement of fiction in tha right [oF the Seate to exercise its diplomatic protection} in the sense that something was assumed to be ‘ruc although it might be untrue” (LC. Yearbook 1998, Vol. 1, 2521st mesting, 29 April 1998, p. 16, para. 45); itis an understatement. 2 ‘See che definition of “fiction” in J. Salmon, dit, op. ct. note 9, p. 504: “Ce procédé (de la fiction) ext habituellement réél par Pusage de la locution ‘comme si ou du verbe‘réputé” (Our translation: “This creation [ofa fiction] is normally revealed by the use ofthe phrase [if] or the verb ‘reputed”).38. Pelles/ The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 rights and interests of the protected person; thus, the right locks up the “legal category” that constitutes diplomatic protection in a situation which does not take into account reality (or at least not entirely).2! And that for clearly “ideological” reasons: it involves preventing the recognition of the international legal personality of private persons in the law known to be exclusively for relations between States, while at the same time guarantee- ing the reparation of the injury caused ~ that is in the context shown by the inequality between the usual perpetrators of injury and the States whose nationals were usually victims since the law of responsibility became fixed in the framework of relations between the Latin American States on the one hand, and the European powers and the United States on the other. ‘The objective that is by no means hidden was to oblige the former to repair the harm caused to the investors originating from the latter by the fre- quently produced revolutions, coup d’Etats and other uprisings in Latin America: “The history of the responsibilty of States in respect of the treatment of foreign nationals is the history of abuses, illegal interference in the domestic jurisdiction of weaker States, unjust claims, chreas and even military aggression under the flag of exercising rights of protection, and the imposing of sanctions in order to oblige a government to make the reparations demanded.” CEJ. Salmon, ¢. cit, note 4, p. 338. ® Inhis report the fourth Reims Conference, “A propos de quelques techniques de 'idgologie juridique appliquée au droi international”, Jean Salmon indicated: “Nous appelons ‘idéologi’ |i rprésentation qu'un systeme social donné se fait de lui-méme. Cette représentation est Emerde Vatel, The Law of Nations (1758), Chap. VI, p. 136 ; reproduced in Carnegie Insti- tution, The Classics of International Law, Washington D.C., 1916, p. 309. ® For a more nuanced presentation ofthese “Lasons learned”, see however Emmanuelle Jouan- net, Emer de Vatel et lémergencedoctinale du droit international clasique, Pris, Pedone, 1998, 490 p. in particular, pp. 319-340. 8 Report supnt note 13, para. 32. © J. Dugard, report supra note 25, para. 21; see aso the comments of Addo during the 1998 debates (LL.C. Yearbook 1998, Vol. 1, 25213t meeting, 29) April 1998, p. 12, para /)Pelle: |The Law and Practice of lnernational Courts and Tribunals 7 (2008) 33-58 41 14. In his only report devoted to the subject before being elected Judge to the LC.TY., Mohamed Bennouna implicitly proposed to abandon the tra- ditional fiction in favour of a more realistic approach. Posing the question in wise and clear terms" the first Special Rapporteur of the ILL.C. on dip- lomatic protection was inclined towards a clear abandonment of the Mav- rommatis formula. In the first instance, he recalled that contemporary international law directly recognises the rights of the individual: “Such recognition has been granted in certain arcas where the national frame- work has proved to be inadequate, in that it no longer mects the needs of human societies, such as the inherent rights of the individual without dis- tinction as to nationality, the rights of forcign investors and the settlement of certain international disputes’.** Then, without by any means putting into question “that the State has a ‘procedural’ right to bring an interna- tional claim in order to protect its nationals when they have suffered injury as. result ofa violation of international law”, he asks himself, “in keeping, with the traditional view, whether in taking such an approach the State is enforcing its own right or whether it is simply the agent or representative of its national who has a legally protected interest at the [international] level and thus a right. According to whether one opts for the right of States or for the right of the national, one is placing emphasis either on an extremely old custom, which gave sovereignty more than its duc, even resorting toa fiction, or on progressive development and adoption of cus- tom, taking account of reality by means of international recognition of human rights’.” 15. There is not the slightest doubt that in approaching the question this way, Mr. Bennouna wished to incite the ILL.C. to opt for the second prong of the alternatives and to pronounce a solicited aggiornamento to the venerable institution of diplomatic protection. Furthermore, he did not try to hide this during the Commission’s debates and he wholeheartedly ®9 “When bringing an international claim, isthe Sate enforcing its own right or the right of is injured national?” (Report supra note 13, para. 54). 3 Ihid., para. 3%; se paras. 34 to 44 ofthe Report Ibid, para. 49. % Acconding to the expression of the LCJ. in the Barcelona Truction case, LCJ. Reports 1970, 3. 5 Report ssp note 13, pr 50. 2 LLC Yearbook 1998, Vol. I, 2520th meeting, 28 April 1998, p. 4, para. 5, and pp. 5-6, paras. 1-19,42 Pellet The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 adopted a position along those lines in his contribution to Mélanges Boutros-Ghali,” which was written contemporancously with his report. 16. Morcover, the idea was not new. Already the Commission's first Special Rapporteur on the subject of international responsibility, Federico Garcia-Amador, had advocated it some forty years earlier. In his first report, he suggested that “[cJhanges which have taken place in the conception of international personality must also of necessity affect the traditional view concerning active and passive subjects of responsibility. The emergence and the recognition of new subjects capable of having or contracting inter- national obligations and of possessing or acquiring international rights, will naturally affect earlier ideas concerning the imputability of responsi- bility and also the views held in the past concern-ing the parties entitled to the interest or right which is infringed by the non-performance of an inter- national obligation. For the same reasons, or else owing to the impact of other legal doctrines and principles, traditional doctrines and principles conceming the exercise of diplomatic protection over nationals abroad may also have been affected”.*° Considering that diplomatic protection does not create a claim of a State which constitutes a “kind of claim (...) ‘entirely new and distinct’ but rather a continuation, at the international level, of the claim which the injured alien brought initially under muni pal law.”,"' he strongly emphasised that “the injured interest or right in the cases of responsibility to which the rule [of diplomatic protection] applics is primarily that of the private individual and not that of the State”. 17. The least that can be said is that, unfortunately, this call to reality was neither heard in the 1950s nor in the 1990s: there was no more sup- port for Mr. Bennouna’s radical proposal from an L.L.C. that had become ‘more thin-skinned than ever than there had been for Mr. Garcia-Amador's proposals. 2 Op. cit, nore 18, pp. 245-250, more specifically, pp. 249-250. © AICNAI96, LLC. Yearbook 1956, Vol. Il, p. 176, para. 9; see also the strong criticism for mulated by the Special Rapporteur aginst diplomatic protection, ibid, pp. 215 ere. para. 219 4, See also his third eport, ICN.A/11, LLC. Yearbook 1958, Vol. IL pp. 62, paras. 2-5. * Ibid, p65, para. 18. Garcia-Amador did noc exclude however that, in certain cases, che State acts also to assert a “general interest” superior to that of the injured individual (zi. para. 21). ‘© First report supra note 41, p. 196, pra, 122: see also p. 214, para. 217 and the third report supra note 4, p. 65, para. 18. ‘© As for the criticism of the position ofthe Special Rapporteur, which i often sever, sce Brown- lic (LC. Yearbook 1998, Vol. 1,2520th mecting, 28 Apsil 1998, p. 7, paras. 26-27), Economides (ibid, p.7, para. 30), Sima (ibid. p. 9, para. 49), Goco (ibid p. 10, para. 58), Addo (ibid, 2521se meeting, 29 April 1998, p. 12, para. 9), Pambou-Tehivounda (ibid, pp. 13-14, paras. 21-25), Dugad (ibid. p. 4-115, para. 33), Hafner (ibid, p. 16, para. 45). ConvincedPellet |The Law and Practice of international Courts and Tribunals 7 (2008) 33-58 43 18. That is pethaps the reason why John Dugard, the second Special Rapportcur on diplomatic protection, while at the same time criticising i, carefully avoided calling into question the Mavrommatis fiction. He noted, very justifiably, that human rights treatics (and investment treaties — but those barely retained his attention) offer foreigners only limited means to enforce the rights they are considered to have on the international plane,* he concluded that “as long as the State remains the dominant actor in international relations, the espousal of claims by States for the violation of the rights of their nationals remains the most effective remedy for the pro- motion of human rights. Instead of secking to weaken this remedy by dismissing it as an obsolete fiction that has outlived its usefulness, every effort should be made to strengthen the rules that comprise the right of diplomatic protection”. This reasoning remains open to debate as it still relies on the debatable combination of the two aspects of the Mavromma- tis formula: it is not by clinging to an outdated fiction, but, on the con- trary, by casting away this old cloak that has now become useless that we can hope to strengthen resort to diplomatic protection, 19. Unfortunately, the position of the Special Rapporteur was generally approved by the Commission“ as it was by Governments” which led to by the approach advocated by Mr. Bennouna, the author ofthese lines had wanted the Commis- sion to recognise “that che rights protected were not those of the State, but, rather, those of the injured individual (..)” (LL-C. Yaerbook 1998, Vo. 1, 2523rd meeting, 1 May 1998, pp. 28-29, para. 21); moreover he, first ofall, insisted on the discretionary character ofthe protection (ibid, pp. 28-29, paras. 20 ro 22) —to which he remains attached, 9 See sup, note 25. “© Report supra note 25, paras 22.0 51. “9 Wbid., para. 32. © See sup, para. 3. © Sce the positon of Brownlie (UC. Yearbook 2000, Vol. 1, 2617th mecting, 9 May 2000, pp.42-A3, para. 45-49 and 51), Gaia (bid p. 43, para. 60), Toma (bid p. 45, para. 76), Kabatsi (ibid, 2618th meeting, 10 May 2000, p. 48, paras. 13-15), Rodriguer-Cedefio (ibid. pp. 53-54, paras 58-60 and 63), Katcea (ibid. p. 54, pars. 6/ and 63), Hafner (ibid, pp. 5455, para. /2), Rosenstock (iid, 2619¢h mecting, 11 May 2000, pp. 56-5/, pars. / and 9), Candiot (ibid. pp. 59-60, paras. 35-4 and 43); forthe more crital pesitions see ele (ibid, 261 8h meeting, 10 May 2000, pp. 49-50, parss. 21-22 and 26), Idris (bid, p. 51, para. 33), Pambou-Tehivounda (ibid, 2619th meeting, 11 May 2000, pp. 58-59, paras, 25-34), Rao (ibid. pp. 61~62, paras. 63-66), Kanto (bid, 2620th meeting, 12 May 2000, pp. 68-69, para. 39) se ako the essay of the debates by the Special Rapporteur (ibid., 2624th meeting, 19 May 2000, pp. 93-94, paras. 5-9). The adoption on the fist rading ofthe fist and second draft articles (see AICN.4/SR.2/30, 5 June 2002, pp. 21-22), and the commentary relating to both sts of craft articles (see AICNA/ ‘SR.2745, 12 August 2002, pp. 3-5) hanlly ried any objections © ‘See, eg. Spain (A/C.6/55/SR.19, 30 October 2000, para. 3), Kay (bid, paras. 13 and 15), Japan (AIC-6/57/SR.21, 30 October 2002, para 1). Fora more general overview ofthe discussions44 Pellet! The Law and Practice of Inernational Courts and Tribunals 7 (2008) 33-58 the hurried adoption of the draft articles, on first reading in 2004, the first article of which provides: Diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a State adopting in its own right the cause ofits national in respect of an injury to that national arising from an internationally wrongful act of another State. 20. Although this provision was drafted in less elegant terms than the Mavrommatis formula, it still held on to its substance: in specifying that when exercising diplomatic protection the State acts “in its own right’, the Commission consecrated the traditional fiction. And the commentary on draft article 2 — which nonetheless had no need for such justification — insisted on stating: “the ‘Mavrommatis principle’ or the ‘Vattelian fiction’, as the notion that an injury to a national is an injury to the State has come to be known, remains the comerstone of diplomatic protection”.*! 21. In the observations they formulated on the draft articles, various States demonstrated a general indifference to this fundamental aspect of the law of diplomatic protection.” Only the Italian government reproached the Commission for having retained a “too traditional” definition of the concept of diplomatic protection and of its scope because the wording of the first article “implies not only that the right of diplomatic protection belongs only to the State exercising such protection [and the Italians did of the Sixth Committee se the topical summaries prepared by the Secretariat ofthe LLC. (A/ €N.4/513, paras. 191-196 and 207-209; AICN.A/S2L, para. 69; A/CN.4/529, paras. 21-22 and 24). 2 "This provision was drafied in the same manner as Article 2 adopted on second reading in 2006 ~ cite ypra, para 5 Report swpnt note 18, p. 27, para. 1) of the commentary on Article 2. Here again, the Com- mission confuses the two elements of the Mavrommatis formu: the discretionary competence of the Sate to exenise or not to exercise its diplomatic protection is by no means linked to the fact that in so doing itis acting “in is own name” "The topical summary prepared by the Secretariat of the IL.C. is limited to noting that “Sup- port was expressed for the approach taken in Article 1, which was considered consistent with the theory and practice of customary international law. (..) The criterion of injury o the national of a State as enunciated in paragraph 1 was considered acceptable since the State itself had infact been injured through the intermediary of its national.” (AICN.4/529, paras. 21-22). This was perhaps the same indifference noted with regard to drat article 2 (ibid, para. 24). It was even suggested thar draft article 2 merely repeated the principle enunciared in the firs draft article (ibid). See however the allusions to the question in the observations of Austria (Diplomatic Protection - Comments and Observations received from Governments, 2006, A/CN.4/561, pp. 7-8 and 13).Pellet |The Law and Practice of international Courts and Tribunals 7 (2008) 33-58 45, not contest this), but also that the right that has been violated by the inter- nationally wrongful act belongs only to the same State”.” Relying on the LaGrand™ and Avena® cases before the 1.C.J. and Advisory Opinion 16/99 of the Inter-American Court of Human Rights, Italy estimated “that the breach of international norms on treatment of aliens may produce both the violation of a right of the national State and the violation of a right of the individual”. 22. This half-measure that is partially supported by the doctrine™ cer- tainly constituted progress; but it was a uscless compromise. It is not contested that the rights which are the subject of diplomatic protection exist, inevitably and in all cases, with regard to protected individuals” — otherwise © hide, AICNATSOAAA2, p. 2. % Judgment of 2/ June 2001, CJ. Reports 2001, p. 466, para. //- % Judgment of 31 March 2004, Avena and other Mesican Nationals, LJ. Reports 2004, pp. 35-36, par. 40. % ‘The Inter-American Court of Human Rights, Advisory Opinion OC-16/99, Ist October 1999, The Right 10 Information om Consular Asistance in the Frumework ofthe Guarantees of the Due Proces of Law, pars. 80. % Comments supra note 52, p. ° Sec in partcular Giorgio Gx “Droit des Etats et droits des inivdus dans le cade dela protection diplomatique™ in JF. Flauss (ed), op. cit, note 11, p. 64, Christian Dominicé, “Regard actuel sur la protection diplomatique", i Liber amicorum Claude Reymond, Autour de Tarbitnage, Lec, Patis, 2004, pp-77-79, para. L114. One year earlier, however, the same author ‘was more reticent. It is true that he proposed with regard to the development of what he termed the international caim of the private individual, “c'est précisément Finsttution de la protec- tion diplomatique qui mérite détre reconsidérée, non pas du tour quant & son principe, mais dans s relation avec la prétention de la personne privée” (Our trandation: “it is precisely the institution of diplomatic protection which warrants consideration, not at all with regard to the principle, but with regard to its relation tothe claim ofthe private individual”) ("La prétention de la personne privée dans le systéme de la responsabilité internationale des Etats" in Stud di divi internazionale in onore di Gaetano Arangio-Ruic, ed. Scientibca, Naples, 2003, p- /42): nevertheless he considered that “si l'on sladmettait pas que Etat national fit valoir son droit propre, il fiudra alors considérerquil neserait quele représentant, le mandataire de son ressorts- sant. I aurait des graves objections & I’égard d'un tel systéme” (Our translation: “if we would not accept that itis the State that asserts is own right then we will have to consider that itis only the representative o agent of the national. There would be serious objections to such a syste") (ibid, p. /43; sce alo from the sume author, “La réparation non contentieuse” in S.EDAL (Gocieeé fangaise pour le droit international), La eponsabilité dans le time international, Col- loque du Mans, Pedone, Pris, 1991, p. 222) > According to the well known formula of the PC.LJ. in the Jurisdiction ofthe Cours of Danzig, ‘ase, “it cannot be disputed thatthe very object ofan international agreement, acconding to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules ‘eating individual rights and obligations and enforceable by the national cours” (Advisory Opinion,46 Pellet The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 they could not appear before national courts nor, in turn, exhaust local remedies. Morcover, as noted by Judge Van Eysinga in his dissenting opinion appended to the Permanent Court’s judgment in the Hlectricity Company of Sofia and Bulgaria case, in the event of mediate injury, “the subject of the dispute between the two States (...) is the sameas the subject of the dispute between the State author of the internationally wrongful act and the private individual injured”;* therefore, it is difficult to see by what mandatory alchemy the “endorsement” of the claim of this individual by the State of his nationality would modify the holder of the right in question. 23. ‘The arbitrary (and superfluous) character of this postulation is par- ticularly clear in the Serbian Loans case in which the Court noted first of all that the controversy submitted to it “solely relates to the existence and extent of certain obligations which the Serbian State is alleged to have assumed in respect of the holders of certain loans. It therefore is exlusively concerned with relations between the borrowing State and private persons, that is to say relations which are, in themselves, within the domain of municipal Law” However, the Court felt obliged to add that, from the moment when the two governments began negotiations on the subject, “there exists between the two Governments a difference of opinion which, though fin- damentally identical with the controversy already existing between the Serb- Croat-Slovene Government and its erediton, is distinct therefrom; for it is between the Governments of the Serb-Croat-Slovene Kingdom and that of the French Republic, the latter acting in the exercise of its right to protect its nationals”. Once again this is confusing the act — the exercise of the right to protect — with the object: the protection of its nationals’ “rights’. In reality, as has been written, “by taking this position, the substitution of the State for the individual (...) was practically replaced by the idea of the representation of the individual by the State. The State brought the claim, 3 March 1928, Series B, No. 15, pp. 17-18). It is precisely rights created in this manner (resulting from customary norms) which ae disposed to becoming the subject of diplomatic se Sethe very thorough analysis of Domine, “La préetion de a personne privée das le systéme de la responsabilité internationale des Fats, op. et. note 58, pp. 729-745. © PCL. Judgment of 4 April 1939, Elecericey Company of Sofia and Bulgaria, Preliminary Objection, Series AB, No. 77, p. 113. © "PCJ Judgment of 12 July 1929, Serbian Loans, Series A, No. 20, p. 18 —emphasis added. © Ibid. ~ emphasis added.Pellet |The Law and Practice of international Courts and Tribunals 7 (2008) 33-58 47 itis true, on behalf of its national like it has always done; but it brings the claim now as that national’s representative. This representation was with- cout doubt necessary and the State representing the individual remains recognised as the sole party formally involved in the dispute; but, materi- ally, the individual represented by the State scems to be the true party whose claim is submitted to the Court" In the same spirit, in the Barce- Jona Traction case, the Court explained that Belgium's claim “is presented on behalf of natural and juristic persons alleged to be Belgian nationals (...)" This must have been some sort of slip of the tongue on the Court’s part as the Court did not draw any conclusions from the presentation of Belgium’s claim that contradicted the traditional theory. Nonetheless, the Court's statement is slightly revealing. 24. The jurisprudence coming out of international arbitrations from the period between the two world wars and after the second world war further demonstrate that there was decreasing sensitivity with regard to the question of whose right was protected. Therefore, it was with great lucid- ity, that the Arbitral Tribunal in the Junghans case between Germany and Romania considered that “the Convention of 10 November 1928 [which created this Arbitral Tribunal] returned to the usual procedure in interna- tional law. The injured individual addressed his government. If the latter accepted to defend his claim, itwas the State that became claimant, appear- ing before the arbitral tribunal as the legal representative of its national. “Thus, the German Government appeared on behalf of the Junghans heirs whose rights determined the extent of the claim it was bringing’ * August Frctere Von der Heydte, “Lindividu et es bunaux internationau (Cours (1962-IID), pp. 325-326 (our translation of: “[plar cette prise de position, deV'Exat 3 Vindividu (..) était pratiquement remplacée par 'idée de représenation de individu par 'Eat. [Etat portait plaice il ext vai, ila place de son resortissant comme il Pvait fait jusquialors; mais maintenance il ne le usa qu’en qualité de son représentant. Cette représenta- tion était sans doute nécessir et Frat représentant Vndividu resait partic formellement admise au ltige; mais, matérellement, individu représenté par!Exat appa ralt comme la véritable partie dont la cause est soumise & la Cour’) © Judgment of 5 February 1970, LCJ. Report: 1970, p. 31, para. 28 ~ emphasis added. © ‘See Carlo Santuli, “Entre protection diplomatique et action directe: la représentation, Flé- iments épars du statu international des sujtsinternes” ir S.EDAL., Lesujet en droit international, Colloque du Mans, Pedone, Paris, 2005, p. 90. © Arbitral Award of 21-29 October 1940, Second part, 3 R.LA.A. p. 1888 (our translation of “Illa Convention du 10 novembre 1928 {qui eréait ce Tribunal arbitral] est revenue & la procé- lure usuelle du droit des gens. Le Ksé Sadresse & son gouvemement. Si ce demier accepte de prendre faitet cause, ex lui quis porte demandeut, agissint devant le Tibunal arbitral comme yan comme la seule48 Pellet The Law and Practice of Imernational Courts and Tribunals 7 (2008) 33-58 25. In the LaGrand and Avena cases, the I.C.J. stepped over the thresh- old. In the first case, the Court admits that “Article 36, paragraph I [of the 1963 Convention on Consular Relations], crcates individual rights, which, .) may be invoked in this Court by the national State of the detained person.” — thus the State protects rights of individuals. In the Avena case, the Court was to decide a question that it succeeded in dodging in LaGrand — no doubt because it had not been raised, in any event not in this form, by the United States: that is the combination of the individual rights of the protected Mexican nationals and the States own rights that Mexico had invoked. 26. Certain authors have interpreted this way of proceeding as the rec- cognition by the Court, not of a new theory of diplomatic protection, but above all as a distinct act of representation.” According to other authors, reprisentant de droit dem msortisant En Vespice, le Gouvernement allemand agit ainsi pour les haéritiers Junghans dont les droits sont le mesure de Faction quil exer”) (emphasis added). Sce also the arbitral award rendered by the same Tiibunal on 10 November 1928, Deutche Bank, ibid. p- 1899. C. Santulli seems however to consider that these actions of representation do not con- stitute actions of diplomatic protection (sce note 69, infra). One can also ask if these solutions did not arse from the agreements conferring competence on the tribunal. ® Judgments of 2/ June 2001, LaGrond, J. Reports 2001, p. 494, para. //, and of 31 March 2004, Avena and other Mexican nationab, IC]. Repors 2004, p. 36, para. 40 — emphasis added. Sir Robert Jennings expressed some regrets however, not with regard to the solution finally adopted by the Court but with regard to the absence of reasoning in support thereof: “It docs seem odd, and an anachronism, for the Court now to recall, almost without acknowledgement as ifthere were an awkwardness beter not met fice on, the old nationality of claims law in order to support a State claim in respect ofa cerain clas of individuals, who have so to speak in the same breath been found nowadays to have Full rights oftheir own created by a treaty: and all chis simply to lend additional colour to what is truly ~ no fiction here ~ the claim of the Stat itself before a Court stil governed by Article 34 of its Statue; which provision indced is the real and again unacknowledged reason for the entire exercise. Doubtless the Court is entitled to do this: but ie would have been helpful iit had explained rather more clearly what ic was doing; rather than just almost silently adopting the German quite complicated device” (“The LaGintnd cae”, 1 Law and Practice of International Cours and Tribunals 48 (2002)). ‘Seen particular C. Sancull, op. cit, note 66, p. 93. The author remarks in effect that despite the fact that the Court “ne se sert pas du mot ‘représentation’, elle voque a spécifiicé de Paffare ct, surtout, en tint 3 Fusilisation du concept, un pew obscur,d'interdépendance des droits Toutefois, au regard de la question posée 3 la Cour, le seul sens que peut avoir, en droit, Minterdépendance’ entre les droits du particulier et ceux de I Etat ext bien la représentation par celuirci des droits de celui-, 3 la difference des actions en protection diplomatique. La ranger dans la catégorie des actions en représentation parat donc la maniére naturelle de rattacher le raisonnement du juge aux gles € 3 la jurisprudence internationales pouvant le justifer” (Our translation: “doesnot rely on the word ‘representation’ it raises the particular nature of the ease and, above all, depends on the use of the slighdy obscure concept, the ‘interdependence ofPellet |The Law and Practice of international Courts and Tribunals 7 (2008) 33-58 49 the Court was merely trying to ignore the question of diplomatic protec tion in order not to need to enter into the (embarrassing) consideration of the exhaustion of local remedies rule raised by the United States.” And according to still others, by “this restatement of the obiter dictum in the Mavrommatis judgment, diplomatic protection detaches itself from inter- State responsibility to assimilate to a theory of the international protection of individuals”,” Indeed, the most convincing explanation is also undoubr- edly the simplest: “In these special circumstances of interdependence of the rights of the State and of individual rights,” Mexico may, in submit- ting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the viola- tion of individual rights conferred on Mexican nationals under Article 36, paragraph 1 (4)";! therefore, the classic inter-State dispute “absorbs” in a way the dispute tied up with the title of diplomatic protection.” And that is not a surprising novelty: without “theorising”, the Court has, in several rights. In any event, with regard ro the question asked of the Court, the only meaning inlaw that the phrase ‘interdependence’ between the rights ofthe individual and those ofthe State ean have is of course the representation by the Sta of the rights of the individual in contrast to actions in diplomatic protection. To lasify i a an actin representation therefore appears to be the natural means by which the judge’ reasoning can be linked to the international rules and jurisprudence that can justify i”) (tid, note 26; emphasis added). Curiously, Pierre-Marie Dupuy seems to consider, following the contribution of C. Santll, chat while the Lairand case constitutes an ation in representation, the Avena case constiutes an action in substisution (zi, p99). * Myriam Benlolo-Carabot, “Larrét dela Cour internationale de Justice dans Vaffire Avena ot «autres resortssants mexicans (Mexique c. Etats-Unis d’Amérique) du 31 mars 2004", 50 A.EED.L 268-269 (2004); Daniel Miller, “Procedural Developments at the International Court of Jus- tice", 3 Law and Practice of International Courts and Tribunals, 560-565 (200). 7) Ph, Weckel, “Chronique de la jurisprudence internationale”, R.G.D.1-P, 2004, p. 736 (our translation of “cette relecture du dict de Varrét Mavrommatis, a protection diplomatique se détache de la responsabilité interéatique pour intégrer une théorie de la protection internatio- nale des personnes"). ™ ‘The Court observed beforehand “violations of the rights ofthe individual under Article 36 may entail a violation of che rights of the sending Stat, and that violations ofthe rights ofthe latter may entail a violation ofthe rights ofthe individual” (CJ. Report: 2004, p. 36, para. 40) Inthe same vein, ee Inter-American Court of Human Rights, Advisory Opinion OC-16/99, supra note 56, paras. 30-84, 9 LCJ. Reports 2004, p. 36, para. 40 — emphasis added. "This “absorption” is confirmed by the fact that ewo lines later, the Court added: “for reasons just explained, the Court does not find it necessary to deal with Mexico's claims of violation under a distines heading of diplomatic protection” (bi).50 Pallet / The Law and Practice of Inernational Courts and Tribunals 7 (2008) 33-58 cases on State responsibility, admitted that a State claimant can appear for the protection of its own rights as well as for the protection of its nationals — in which case the Court does not inquire as to whether the conditions of nationality and, in any event, of exhaustion of local remedics, which in principle were to have occurred prior to the exercise of diplomatic protection, have been fulfilled.”> IIL. — Towards the Abandonment of the “Mavrommatis Fiction”? 27. Whatever that may mean, it is certain that these tremors in the juris- prudence and doctrine were instrumental factors in inciting the LLL.C. to “review its examination paper” in extremis on the occasion of the second reading of the draft articles.”* Even though in his seventh report John Cf. Judgments of 27 June 1986, Military and Penumilizary Activities im and aguinst Nicaragua (Nicaragua 1 United Stats of America), Merits, LCJ. Reports \986, pp. 142 et eq, para. 283 et seq: 19 December 2005, Armed Actvitcson the Teritary ofthe Congo (Democratic Republic ofthe Congo Uganda), CJ. Report 2005, p. 257, para. 259: “the Court considers that those acts resulted in injury tthe DRC and to persons on its territory’: se also the Application of the Bosnian-Herzegovinians in the case relating to The Applicaion ofthe Convention on the Preven- tion and Punishment of the Crime of Genocide, 20 March 1993, para. 135 and the final conclu- sions formulated by the Agent a the end ofthe orl proceedings: “Serbia and Montenegyo must redress the consequences ofits international wrongful ats and, as a result ofthe international responsibility incurred forthe above violations of the Convention on the Prevention and Punish- iment ofthe Crime of Genocide, must pay, and Bosnia and Herzegovina is entitled to recive, its own right and as parens pare for its citizens, full compensation for the damages and losses caused” (CR 2006/37, 24 April 2006, p. 60). Furthermore, chis isin line with the more general principle whereby when various issues ae tobe decided in a case the rules of admissibility fellow what appears tobe the ‘predominant dispute” even though very precise rule allowing for that determination do not exist (see C.J. Judgment of 21 March 1959, Jnterbandel (Switzerland v United States of America), LC]. Report: 959, p. 293 sce also, although less probative, che Judg- ments of 24 May 1980, United States Diplomatic and Consular Seaff in Tebmin (United Seates af America x Inon) ILC]. Reports 1980, p. 25, para. 46, and 14 February 2002, Arrest Warnent 11 April 2000 (Democratic Republic ofthe Congo. Belgium), LC]. Reports 2002, p. 17, para. 40). % A.more anecdotal element probably contributed to this: the French translation of the new draft of Article I proposed in the seventh report of J. Dugard contained a serious error since the expression “in its own name” had been omitted, which meant it id not corespond at all to the English original norco the Special Rapporteur’ intention (A/CN.4/56/ (2006), para. 21). Tak- ing the floor with regard to this proposal, the author of the present article Special Rapporteur for dhs Fortunate change, while declaring that he was “i reasoning, which did not appear in the eport (and or good reason!) that had driven J Dugard to do this (ICN A/SR.2868, 2 May 2006, p10).Pelle |The Law and Practice of nernational Courts and Tribunals 7 (2008) 33-58 51 Dugard stuck to the Mavrommatis fiction,”” some Members of the Com- mission, seising upon the Italian proposal,” vehemently pleaded for the fiction's abandonment and the consecration of the “legal reality” according to which “[d]iplomatic protection consists of resort to diplomatic action or to other means of peaceful settlement by a State which maintains that the rights of its national have been violated by the internationally wrongful act of another State”,”” 28. The drafting Committce demonstrated that it was sensitive to these arguments without taking them on board. As indicated by its President Roman Kolodkin, “[t]he Committce had proceeded on the basis of a pro- posal which had emerged from the plenary debate” and which had avoided any reference to the basis upon which the State was invoking diplomatic protection, focusing instead on the responsibility of the injuring Stare. The understanding had been that such reformulation did not prevent the State from acting in its own right, a principle which was well-established in international law. Instead, the new formulation reserved the question as to whether the State was acting in its own right or that of the individual, or both”.*! As a consequence, the Commission adopted, without debate, the first article (definition and scope) in the following words: For the purposes of the present draft articles, diplomatic protection consists of the invoca- tion by a State, through diplomatic action or other means of peaceful settlement, of the ‘esponsibility of another Stae for an injury caused by an internationally wrongful act of that State to a natural or legal person that i the national of the former state with a view to the implementation of such responsibil 7 Paragraph 1 of Article I, which he proposed in its English version ce preceding note) should read as follows: “Diplomatic protection consists of resort to diplomatic action or other means of peaceful selement by a State adopting in its own right the cause ofits national or a person referred to in Article 8 in respect of an injury to that national or person arising from an interna- sionally wrongful act of another State” (AICN.4/56/, para. 21 ~ emphasis added). ™ ‘See sup para. 21 ™ Proposal made during the meeting of 2 May 2006 by the author of the present article (A/ CNAISR.2868, p. 11); along the same lines, see the remarks of Momtaz (AICN.4/SR.2870, 4 May 2006, pp. 6-7), of Escarameia (bid, p. 9) and Fomba (AICN.4/SR.2871, 5 May 2006, p19) and Candiosi, whose proposals for the editing of draft article I (ibid, p. 23) go directly the origin of the text that was finally adopted (sce nf, para. 28); se also, although they are ‘more ambiguous. the proposals of Rodriguez Cedefio (AICN.A/SR.2870, 4 May 2006, p. 19) or Kemicha (in support of the Ialian proposal ~ A/CN.4/SR.2871, 5 May 2006, pp. 6 and 9) or Daoudi (iid. p. 33), © Proposal of Enrique Candioti, mentioned in note 79 above. *) AICNAISR.288I (50 May 2006), p. 1252 Pallet The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 29, Itis not exactly crystal clear— but this formulation has the great advan- tage of defining diplomatic protection without basing itself on the Mav- rommatis fiction, and meanwhile any allusion to the fiction has been principle) carefully climinated from the commentaries on the other arti- cles, even though it permeated the commentaries on the draft articles adopted on first reading. Furthermore, even though the text of Article 1 is silent with regard to the holder of the protected right, its commentary scems to reject the traditional fiction; after having cited the Mavrommatis formula, it states: “Obviously it is a fiction and an exaggeration,” to say that an injury to a national is an injury to the State itself. Many of the rules of diplomatic protection contradict the correctness of this fiction, notably the rule of continuous nationality which requires a State to prove that the injured national remained its national after the injury itself and up to the date of the presentation of the claim. A State does not ‘in reality’ — to quote Mavrommatis—, assert its own right only. ‘In reality’ it also asserts the right of its injured national”. 30. ‘That being said, it would appear that the 1.L.C. can lean toward the theory of the “two rights’:* the words “not only” and “also” appear in cffect to imply that in the exercise of diplomatic protection, the State acts at the same time in the name of its national and in its own name. But, in the paragraphs that follow, the Commission, adopting the reasoning of its drafting Committce™ defends itself against any particular sccond thoughts concerning the holder of the rights that are the object of the protection. At the same time stressing that the situation today differs completely from the situation thar led to the preservation of the traditional fiction because “the individual is the subject of many primary rules of international law, both under custom and treaty, which protect him at home, against his own Government, and abroad, against foreign Governments’,* it states that “[d]rafe article 1 is formulated in such a way as to leave open the question whether the State exercising diplomatic protection does so in its own right or that of its national — or both”. © J.L Brierly, The Law of Nations: An Introduction tothe International Law of Peace, 6th ed (e. publ. Sir Humphrey Waldock), Oxford, Clarendon Press, 1963, pp- 276-277. "Report supra note 3, para. 3) of the commentary on the frst article. °° See sup, para. 26. > Soe sup, para. 28 % Report supra note 3, para. 4) of the commentary on the frst article. "bid. para 5) of the commentary on the fist article.Pellet! The Law and Practice of Intemational Courts and Tribunals 7 (2008) 33-58 53 IV. ~ The Uncertain Consequences of Discarding the “Mavrommatis Fiction” 31. The remainder of the Draft Articles does not provide the key to this premeditated enigma and vacillates between tentative progress and prob- lematic trepidation, without drawing the conclusions that came from the slightly dishonourable abandonment of the Mavrommatis fiction resulting from the drafting of Article 1. 32. One preliminary matter must be made absolutely clear: while refus- ing to adopt the idea that when a State exercises diplomatic protection in favour of one of its nationals, it asserts its “own right”, the LLL.C. did not, by any means, renounce the other wing of the institution of diplomatic protection."* The setting aside, or placing in brackets, of the traditional fiction has no effect on the discretionary character of the exercise of the protection. As a consequence, there is no contradiction between the omis- sion of “own right” in the first draft article and its reconfirmation, that the Special Rapporteur and certain members of the Commission greatly regret ted,” in draft article 2 that the exercise of diplomatic protection is a right of the State — which is as compatible with the fiction as it is with a realist theory. And if Article 19.a) (wisely) “recommends” that the State having the right to exercise its diplomatic protection exercises it “especially when a significant injury has occurred’, this is simply a wish de lege ferenda, even if the commentary on this provision undoubtedly gocs a little far when affirming, in an undeniably awkward formula, that “it is possible to seri- ously suggest that international law already recognizes the existence of some obligation on the part ofa State to consider the possibility of exercis- ing diplomatic protection on behalf of a national who has suffered a significant injury abroad”. 33. The safeguarding of the rule of continuous nationality by Articles 5 and 10, is not, in itself, justified cither by the traditional fiction — because, © See supra, para. 4 © See J. Dugand, Report supra note 25, paras. 87-88. Sce ako the comments of Escarameia (A/ICN4/SR2870, 4 May 2006, p.9) and of Economides (ibid, p. 4). % Report supra note 3, para. 3) of the commentary on Article 19; sce however the interesting, practice that is mentioned there and the recent judgment ofthe second chamber of the Court of First Instance of the European Union in the case of Chafig Ayadi x. Council ofthe Eurapean Union by which the Court recognised a right of judicial recourse against a decision of national authori- tics refusing to take up the cause of one of its nationals (Case T- 253/02, Judgment of 12 July 2006, Re. 2006, p. 1-2139, sce in particular, para. 152).54 Pallet / The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 if the State defends its own right, there is no reason that it will be deprived of it if its national changes nationality after the injury has occurred, nor by its abandonment — because if the State is only the representative of the rights of its nationals, it is difficult to see how the State of the former nation- ality could exercise its protection. In any event, the significant flexibility to which the rule is well-suited shows that, in this regard, the 1.L.C. was like- wise not indifferent to the interests of individuals, because under the terms of paragraph 2 of Article 5, the new State of nationality can exercise its protection “provided that the person had the nationality of a predecessor State or lost his or her previous nationality and acquired, for a reason unre- lated to the bringing of the claim, the nationality of the Claimant State in a manner not inconsistent with international law”. 34. Article 8, which is an important article that permits the State to exercise its protection in favour of a stateless person or a refugee residing on its territory, obviously raises the same preoccupations and undoubtedly constitutes an innovation to the Draft Articles that requires approval.’" All things considered, this provision is hardly compatible with the traditional fiction: it appears quite incongruous to claim that “in bringing a claim for the stateless person or the refugee who is habitually resident on its territory, in actuality, the State asserts its own right, the right that it has to have international law respected with regard to these non-nationals 35. As for the well-established? requirement of the exhaustion of local remedies, it has never been reconcilable with the idea of the State’s “own right” to cxercisc its diplomatic protection because this means admitting that through his or her own indolence, the private individual can paralyse the exercise of a right belonging to the State. By not relying on the Mav- rommaatis fiction on this point the ILL.C. restored the coherence of the institution. But one might ask why the Commission did not push this logic to its limit by recognising that the private individual can renounce ° Ie is interesting to note chat contrary to what certain members of the Commission thought, Governments did not, for the most part, protest this provision which arose undoubtedly from progressive development rater than from the colification strict ensue ‘See para 1) of the commentary on Article 14 (Report supne note 3). 2 See sup, para. /. % Jean Salmon made the legitimate remark that the rule ofthe eshaustion of local remedies docs ‘not come into play unless the protection translates into some sort of court action (op. cts note 9, p- 108).Pelle: |The Law and Practice of lnernational Cours and Tribunals 7 (2008) 33-58 55 the protection of the State of which he or she is a national by his or her action or by his or her inaction.” 36. This is precisely the problem posed by the Calvo Clause, which resulted in long debates” and which, wisely, was not resolved by the Draft Articles. Nonetheless, as noted in the commentary on Article 14, “the objections to the validity of the ‘Calvo Clause’ in respect of general inter- national law are certainly less convincing if one accepts that the rights protected within the framework of diplomatic protection are those of the individual protected and not those of the protecting State”.” Here, once again, we would no more beable to admit that an individual has renounced a right which itself belongs to the State of which he or she is a national, than we would be able to sce why he or she could not prevent the State from protecting the rights that belong to him, as a natural (or legal) per- son. In the long run, such acknowledgement of the validity of the Calvo clause, which the ILC. did not do willingly, would be in conformity with the advent of multinational corporations becoming the major actors in international relations ~ whether this is something we want to deplore or something we want to applaud. 37. Another “way around the obstacle” appears patently clear when read- ing paragraphs b) and c) of Article 19 of the Draft Articles which provide: A Scate entitled to exercise diplomatic protection according to the present draft articles, should: oo) 1) Take into account, wherever Feasible, the views of injured persons with regard to resort 10 diplomatic protection and the reparation t be sought; and ©) Transfer to the injured peson of any compensation obtained for the injury from the responsible State, subject to any reasonable deductions. 38. In this provision that was added at the last minute to the Draft Articles proposed on second reading, the Commission once again gives the impression. © See G. Gaja op cts nore 58, p. 69. % See’Thind Report ofthe Special Rapporteur (AICN.4/523/Add.1) and the discussions of the LLC. (ICNAISR.2/25, 24 May 2002; AICNAISR.2/2/ to 2/29, 30 May-June 2002). ° Report supra note 3, para. 8) of the commentary. % “This originated from a proposal made by the Special Rapporteur in his seventh report (supra note 76, paras. 93-103; se also the presentation ofthis proposal made during the 2868th meeting of the Commission, A/CN.4/SR.2868, 2 May 2006, pp. 22-23). Nevertheless it was seriously56 Peller The Law and Practice of International Courts and Tribunals 7 (2008) 33-58 that itis frightened by its own audacity and limits itself to “recommend- ing” what it could have, without taking too large a risk, proposed more vigorously in the name of the progressive development of international law, perhaps even as a codified rule ~ at least with regard to the first point, by which it simplistically approaches (the recommendation of the consul- tation with the victim) the bigger and more important issue ~ reparation. Indced, it is hardly doubtful that, in conformity with jurisprudence that has been for the most part consistent, the injury suffered by the private individual supplies “a convenient scale for the calculation of the reparation due to the State”” and that thercin lies a rule of positive law" — which is furthermore one of the most glaring indications of the fictional character of the Mavrommatis formula." Icis difficult to understand why the LLC. refused to say so even though it had gone ahead and lifted the theoretical obstacle of the fiction. 39. The second point might seem even more difficult. Even though on one hand it might be desirable from a moral and humanitarian perspective ~ and also logical if onc forgets about the traditional notion of fiction — that the protecting State transfer the reparation it obtained from the responsible State to the injured individual in the name of diplomatic protection, on the other hand this idea clashes with another principle: the discretionary character of the exercise of the protection; if the State has discretion t0 intervene or not to intervene, it is not obvious that if it docs intervene it should pursue its action fully and provide the injured individual with the compensation eventually obtained. Nonetheless, even if it is certain that traditional practice relied on the opposite principle," to do so it leaned on reworked by the Drafing Committee in order to take into account the debates before the Com- mission and the special nature of this proposal on which States were unable to comment and which was considered to constitute a proposal of progressive development (sce the Report of the President ofthe Drafting Committee, AICN.4/SR.2881, 30 May 2006, pp. 27-28) PCJ, Judgment of 13 September 1928, Factory at Chorzéw (Merit), Series A, No. 17, p- 28 "© See, in particular, Brigitte Bollecker-Stern, Le prijudice dans a théore de la responsabilité ‘internationale, Pari, Pedone, 1973, pp. 97-99 or L. Dubouis, p. ct, note 18, pp. 624 and 632-654, who notes that “le préjudice subi par la vietime devient, plus que la mesure, la cond- tion méme de lindemnisation” (Our translation: “the injury suffered by the victim becomes, ‘more than just the measure of, bu the basis for the reparation”) (p. 633). "9 See supra, para. 7 "9 “Eyen if payment is made w the espousing nation in pursuance of an award, it has complete control over the fund so paid to and held by it and may, to prevent fraud, correct a mistake, oF protect the national honor, a its cection retuen the fund tothe nation paying it or otherwisePellet / The Law and Practice of Intemational Courts and Tribunals 7 (2008) 33-58 57 the Mavrommatis fiction, which now appears to have been pounded into the ground." Otherwise, and most certainly as we now admit that the protecting State acts on behalf of its national’s rights, keeping the compen- sation would constitute unjust enrichment. 40. In reality, nothing prevented the LLL.C. from coming up with stron- ger language in paragraphs b) and c) to Article 19, other than cold feet, combined with the conditions under which the articles were drafted. Indeed, at first glance, the second Special Rapporteur of the Commission on Diplo- matic Protection stated that he was radically opposed to any codification of the rules other than those relating to the conditions of the exercise of pro tection," even though the general outline established in 1997 by the work- ing group envisaged a greater treatment of some of the issues involved, including, in particular, the issues of lis alibi pendens and the “impact of alternative international remedies” as well as “consequences of diplomatic protection”. It was not until his seventh report, in 2006, and on the occa sion of the examination of the Draft Articles proposed on second reading, that John Dugard partially changed his mind and cxamined the question of “the right of the injured national to compensation”. 41. Certain jurists demonstrate an odd propensity to criticise theoreti- cal debates by proclaiming them to be sterile and futile whereas, often, in the long run, the issues discussed at them are fairly concrete. Irrespective of what certain members of the LL.C., no doubt in fact the majority,!” dlispose oft” (Mixed Claims Commission United States-Germany (Umpire Parker), 31 October 1924, Administrative Decision No V, 7 RLA.A. 152 ~ cited in Report supra note 3, para. 5) of ‘commentary on Article 19) "8 CE the case-law cited ibid, para 6). The emblematic decision in chs regard is that of the ECHR in the Bewmartin . Pronce case (Application 1° 15287/89, Judgment of 4 November 1994, Series A. No. 296-B). "99 See the First Report ofthe Special Rapporteut, supra note 25, para 35, and his Thal Report, AICNA/523, para. 15. See also the Report of the LLC. on the work of its 57th session (2005), ‘AV6OI10, pp. 115-116, paras. 239-240. "™ See the report of the Working Group on diplomatic protection, in LC. Yearbook 1997, Vol Il, 2nd part, pp. 60-63, Se abo the general ulin, established by the author of these lines, annexed to the Report on the long-term work programme in 1.L.C. Yearbook 1996, Vol. I, 2nd part, pp. 13/—138, "8° Reportsupra note 76, paras. 93-103. Without any doubt this constituted some progres: none- theless a numberof other questions relevant to the subject have not been dealt with (ee A. Pellet, ‘op. ct, note 2, pp. 1145-1155). "© See, for example, the comments of Brownlie (ibid, 2520ch meeting, 28 April 1998, p. 7, paras, 26-2/), Eeonomides (iid. p. /, para. 30, and 2524rd meeting, 1 May 1998, p. 30,58 Peller / The Law and Practice of Imernational Courts and Tribunals 7 (2008) 33-58 thought, the one who introduced the “Mavrommatis fiction” to this hon- ourable assembly did not escape the rule. To have opted for a half-measure, without ever having adopted a clear “theoretical” position, the 2006 Draft Articles climinate only a part of the inconsistencies which characterise the regime of diplomatic protection and did not draw all of the consequences from the theory of representation that the Commission did not dare to accept itself. Nevertheless, the Draft Articles certainly correspond more cffectively than the traditional analysis to the rules that are actually applied in practice and one can only hope that, as imperfect and unfinished as they are, they will contribute to the definitive elimination of the uscless fiction from contemporary international law. para, 28), Hafner (ibid, 2521st meeting, 29 April 1998, p. 16, para. 45), Rosenstock (ibid, pp. 17-18, para. 57), Sepulveda (ibid, 2522nd meeting, 30 April 1998, p. 19, para 5), Baena- Soares, (J.C. Yearbook 2000, Vo. 1, 2617ch meeting, 9 May 2000, p. 43, para. 54), lds (ibid. 2618th meeting, 10 May 2000, p. 51, para. 31). * The translation from the French has been provided by Cheryl Dunn, Eversheds LLP, PaisCopyright of Law & Practice of International Courts & Tribunals is the property of Martinus Nijhoff and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. 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