42
25
(3)
Diplomatic protection has traditionally been seen as an exclusive State right in the sense
that a State exercises diplomatic protection in its own right because an injury to a national is
deemed to be an injury to the State itself. This approach has its roots, first in a statement by the
Swiss jurist Emmerich de Vattel in 1758 that “whoever ill-treats a citizen indirectly injures the
State, which must protect that citizen,”
21
and, secondly in a dictum of the Permanent Court of
International Justice in 1924 in the Mavrommatis Palestine Concessions case that “by taking up
the case of one of its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own right, the right to ensure, in the
person of its subjects, respect for the rules of international law”.
22
Obviously it is a fiction - and
an exaggeration
23
- 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.
(4)
In the early years of international law the individual had no place, no rights in the
international legal order. Consequently if a national injured abroad was to be protected this
could be done only by means of a fiction - that an injury to the national was an injury to the State
itself. This fiction was, however, no more than a means to an end, the end being the protection
of the rights of an injured national. Today the situation has changed dramatically. 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
21
E. de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of
Nations and Sovereigns, vol. III (1758, English translation by C.G. Fenwick, Carnegie Institution,
Washington 1916), chap. VI, p. 136.
22
Mavrommatis Palestine Concessions (Greece v. U.K.) P.C.I.J. Reports, 1924, Series A, No. 2, p. 12. This dictum
was repeated by the Permanent Court of International Justice in the Panevezys Saldutiskis Railway case (Estonia v.
Lithuania) P.C.I.J. Reports, 1939, Series A/B, No. 76, p. 16.
23
J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6th edition (Oxford:
Clarendon Press, 1963), Sir H. Waldock (ed), pp. 276-7.
