Marten Breuer

Das Rechtsfolgenregime des diplomatischen Schutzes unter dem Einfluss der Menschenrechte

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Archiv des Völkerrechts (AVR)

Jahrgang 55 () / Heft 3, S. 324-348 (25)

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In recent years, diplomatic protection and the protection of human rights have intersected more and more frequently, however these concepts, stem from different epochs of international law: The right to diplomatic protection was developed under the traditional, state-centred period of international law, which has a bearing on the concept of diplomatic protection. According to the PCIJ's well-known Mavrommatis formula, by resorting to diplomatic action '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'. During the drafting of the 2006 ILC Draft Articles on Diplomatic Protection, the fictional character of this traditional concept was criticised. This did not however result, in a clear-cut reconceptualization, and any further development has been left open. Human rights, by contrast only became an issue at the international level after the Second World War. Unlike diplomatic protection, there is no need for a fiction, as the individual himself or herself is the holder of right under international law. Upon closer scrutiny, it becomes clear that international human rights treaties have a two-layered structure: over and above creating rights for the individual, they also create obligations between the contracting States parties. Furthermore, human rights have a rationale entirely different from diplomatic protection in that they are not dependent on nationality. Yet these conceptual differences, do not preclude the assertion of human rights obligations by means of diplomatic protection, an example being the Diallo case before the ICJ. Similarly, the ECtHR in Cyprus v. Turkey underlined that there are similarities between the State complaint procedure and diplomatic protection. This leads to the question of the legal consequences arising out of diplomatic protection. Under the traditional concept, a State receives compensation in the exercise of diplomatic protection in response to a violation of that State's own right. Consequently, there is no legal obligation, at international law, to transfer the sum of money to the individual. This article argues where human rights are asserted by means of diplomatic protection, this should be different. The argument is that the ultimate beneficiary of human rights is the individual. For reasons of dogmatic consistency, this characterisation of the primary rule must also prevail at the secondary rule. The ICJ judgment in the Diallo case and the ECtHR judgment in Cyprus v. Turkey lend further arguments in support.

Marten Breuer Geboren 1971; Studium der Rechtswissenschaft in Würzburg; 2000 Promotion; 2010 Habilitation; seit 2012 Inhaber des Lehrstuhls für Öffentliches Recht mit internationaler Ausrichtung an der Universität Konstanz.