Edited by Robert Kolb and Gloria Gaggioli
Chapter 4: The position of individuals in public internationallaw through the lens of diplomatic protection:the principle and its transfiguration
In this contribution we endeavour to examine the legal status of individuals from the perspective of diplomatic protection, with the purpose of ascertaining whether the asserted evolution of the latter has had any impact on the international personality of the former. To this end, we will firstly sketch two different definitions of the international personality, and then the main features of diplomatic protection, in its traditional construction as well as in its ‘transfigured’ form, will be scrutinized. Generally speaking, the individual is seen by international law in two different, yet complementary, perspectives. In the first, which can be labelled ‘traditional’, the individual is taken into consideration as an ‘object’, that is, an extension of States’ jurisdiction; viewed from this angle, they can be the source of a dispute between States as they crystallize the collision between their sovereignties. Therefore, international law is not at all concerned with individuals outside this specific situation; indeed, the regime which applies to them is governed by the national jurisdiction of the State of which they are nationals; in other words, the relationship between a national and its State belongs to the latter’s domaine réservé. The second approach, which can be termed the new approach, or nouvelle vague, since it came chronologically after the first one, is tacked on to it, without, though, replacing it. We are talking of the widely known – and highly publicized – law related to human rights. According to this perspective – which encompasses the wide and deeply specialized body of rules related to the human rights
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