Diplomatic protection and human rights before the International Court of Justice: re-fashioning tradition?

Abstract

2004 was an eventful year for diplomatic protection. The ILC adopted at first reading a full set of draft articles. At the same time, some opportunities to clarify contentious issues concerning the relation of diplomatic protection with human rights law were missed. In the Avena decision, the ICJ made a step backwards, compared to LaGrand, with regard to the characterisation of the applicant's action as diplomatic protection: the Court referred to the ‘inter-dependence’ of the rights of the State and the rights of the individual and it did ‘not find necessary to deal with Mexico's claims of violation under a distinct heading of diplomatic protection’. The Court also failed to address thoroughly Mexico's contention that Art. 36 VCCR individual right to notification can be characterised as a human right: it only provided a clue as to its position when it stated that ‘neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in that regard.’ The present article looks at the case law of the ICJ in the field of diplomatic protection to evaluate whether the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. The discussion is conducted in the context of the ILC project, to assess potential interactions between the ILC work and the ICJ case law. The main argument the article presents is that, whereas the Court is hesitant in leading to a jurisprudential elaboration of diplomatic protection, the remedies ordered show a willingness of the Court to make diplomatic protection instrumental to the protection of human rights.