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As If: The Legal Fiction in Diplomatic Protection
Annemarieke Vermeer-Kunzli 1
Abstract
Diplomatic protection is premised on a fiction: injury to an individual is treated as if it constituted injury to the individual's national state, entitling the national state to espouse the claim. 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. 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. This is a rather complex process: the violation of an individual's right gives rise to the right of the state of nationality to exercise diplomatic protection. The complexity is caused by the question of whose rights are being protected (the state's or the individual’s) and the nature of the various elements of the law on diplomatic protection. These questions should not, however, lead to a rejection of the fiction. To the contrary, a careful analysis of legal fictions in general and the fiction in diplomatic protection in particular shows that the fiction is no more than a means to an end, the end being the maximal protection of individuals against violations of international (human rights) law.
1 PhD Fellow at Leiden University.
© 1990-2004 European Journal of International Law
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