Application of the Genocide Convention
case both on behalf of the state
and ‘as
parens patriae
for its citizens’, Application, pp. 20–1.
203
Diallo (Guinea
v
. Democratic Republic of the Congo)
, ICJ Reports, 2007, para. 39.
204
See Report of the ILC on its 58th Session, A/61/10, 2006, p. 13.
205
See the
Diallo (Guinea
v
. Democratic Republic of the Congo)
case, ICJ Reports, 2007, para.
39, where the Court noted that article 1 reflected customary law.
206
Kaunda
v
. President of South Africa
CCT 23/04, [2004] ZACC 5, paras. 26–7 and
Van Zyl
v.
Government of RSA
[2007] SCA 109 (RSA), para. 1.
810
i n t e r nat i o na l l aw
abroad,
207
although it can be said that nationals have a right to request
their government to consider diplomatic protection and that government
is under a duty to consider that request rationally.
208
In addition, once a state does this, the claim then becomes that of the
state. This is a result of the historical reluctance to permit individuals the
right in international law to prosecute claims against foreign countries,
for reasons relating to state sovereignty and non-interference in internal
affairs.
This basic principle was elaborated in the
Mavrommatis Palestine Con-
cessions
case.
209
The Permanent Court of International Justice pointed out
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 rights, its right to ensure, in the person of its subjects,
respect for the rules of international law . . .
Once a state has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the state is sole claimant.
210
It follows that the exercise of diplomatic protection cannot be regarded as
intervention contrary to international law by the state concerned. Coupled
with this right of the state is the constraint that a state may in principle
adopt the claims only of its own nationals. Diplomatic protection may not
extend to the adoption of claims of foreign subjects,
211
although it has been
suggested ‘as an exercise in progressive development of the law’ that a state
207
See e.g.
HMHK
v.
Netherlands
94 ILR, p. 342 and
Comercial F SA
v.
Council of Ministers
88 ILR, p. 691. See also
Kaunda
v.
President of South Africa
CCT 23/04, [2004] ZACC 5,
paras. 29 and 34, noting that diplomatic protection is not recognised in international law
as a human right, but a prerogative of the state to be exercised at its discretion (per Chief
Justice Chaskalson).
208
See
Van Zyl
v.
Government of RSA
[2007] SCA 109 (RSA), para. 6.
209
PCIJ, Series A, No. 2, 1924, p. 12. See the
Panevezys–Saldutiskis
case, PCIJ, Series A/B, No.
76; 9 AD, p. 308. See also Vattel, who noted that ‘whoever ill-treats a citizen indirectly
injures the state, which must protect that citizen’,
The Law of Nations
, 1916 trans., p. 136.
210
See e.g.
Lonrho Exports Ltd
v.
ECGD
[1996] 4 All ER 673, 687; 108 ILR, p. 596.
211
However, note article 20 of the European Community Treaty, under which every person
holding the nationality of a member state (and thus a citizen of the European Union
under article 17) is entitled to receive diplomatic protection by the diplomatic or con-
sular authority of any member state on the same conditions as nationals of that state
when in the territory of a third state where the country of his or her nationality is not
represented.
s tat e r e s p o n s i b i l i t y
811
may adopt the claim of a stateless person or refugee who at the dates of
the injury and presentation of the claim is lawfully and habitually resident
in that state.
212
Such diplomatic protection is not a right of the national
concerned, but a right of the state which it may or may not choose to
exercise.
213
It is not a duty incumbent upon the state under international
law. As the Court noted in the
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