Protezione diplomatica

Protezione diplomatica
ILC Draft Articles on Diplomatic Protection
Article 1
Definition and scope
For the purposes of the present draft articles, diplomatic protection
consists of the invocation by a State, through diplomatic action or other
means of peaceful settlement, of the responsibility of another State for
an injury caused by an internationally wrongful act of that State to a
natural or legal person that is a national of the former State with a view
to the implementation of such responsibility.
traduzione
“… la protezione diplomatica consiste nell’invocazione da parte di uno
Stato, mediante una azione diplomatica od altri mezzi di regolamento
pacifico, della responsabilità di un altro Stato per un pregiudizio
causato da un fatto internazionalmente illecito del detto Stato ad una
persona fisica o morale in possesso della nazionalità del primo Stato ai
fini di far valere tale responsabilità”. (C.D.I., Articolo 1 del “Progetto di
articoli sulla protezione diplomatica adottato dalla Commissione in
seconda lettura”).
ICJ caso Diallo 2007
Par. 39
Owing to the substantive development of international law over recent
decades in respect of the rights it accords to individuals, the scope
ratione materiae of diplomatic protection, originally limited to alleged
violations of the minimum standard of treatment of aliens, has
subsequently widened to include, inter alia, internationally guaranteed
human rights.
Titolarità del diritto
Art. 2
Right to exercise diplomatic protection
A State has the right to exercise diplomatic protection in accordance
with the present draft articles.
Commentary:
A State has the right to exercise diplomatic protection on behalf of a
national. It is under no duty or obligation to do so. The internal law of
a State may oblige a State to extend diplomatic protection to a
national, but international law imposes no such obligation.
International Court of Justice in the Barcelona
Traction case:
“… within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own right
that the State is asserting. Should the natural or legal person on whose behalf it is acting
consider that their rights are not adequately protected, they have no remedy in
international law. All they can do is resort to municipal law, if means are available, with
a view to furthering their cause or obtaining redress … The State must be viewed as the
sole judge to decide whether its protection will be granted, to what extent it is granted,
and when it will cease. It retains in this respect a discretionary power the exercise of
which may be determined by considerations of a political or other nature, unrelated to the
particular case”.
ILC Draft Articles
Article 19
Recommended practice
A State entitled to exercise diplomatic protection according to the present
draft articles, should:
(a) Give due consideration to the possibility of exercising diplomatic
protection, especially when a significant injury has occurred;
(b) Take into account, wherever feasible, the views of injured persons with
regard to resort to diplomatic protection and the reparation to be sought;
and
(c) Transfer to the injured person any compensation obtained for the injury
from the responsible State subject to any reasonable deductions.
Stato del diritto consuetudinario
Art. 19
Commentary
There are certain practices on the part of States in the field of
diplomatic protection which have not yet acquired the status of
customary rules and which are not susceptible to transformation into
rules of law in the exercise of progressive development of the law.
Nevertheless they are desirable practices, constituting necessary
features of diplomatic protection, that add strength to diplomatic
protection as a means for the protection of human rights and foreign
investment.
Diritto alla riparazione?
ILC Draft Articles on State Responsibility (2001)
Art. 48, par. 2, lett. b)
Legittimazione degli Stati in risposta a violazioni erga omnes:
Ogni Stato può reclamare …
«b) l’adempimento dell’obbligo di riparazione in conformità con gli
articoli precedenti, nell’interesse dello Stato offeso o dei beneficiari
dell’obbligo violato»
CIG sentenza Germania c. Italia
Par. 94
«against the background of a century of practice in which almost every
peace treaty or post-war settlement has involved either a decision not
to require the payment of reparations or the use of lump sum
settlements and set-offs, it is difficult to see that international law
contains a rule requiring the payment of full compensation to each
and every individual victim as a rule accepted by the international
community of States as a whole as one from which no derogation is
permitted».
ICJ Germania c. Italia
Par. 102
Where the State receiving funds as part of what was intended as a
comprehensive settlement in the aftermath of an armed conflict has elected
to use those funds to rebuild its national economy and infrastructure,
rather than distributing them to individual victims amongst its nationals, it
is difficult to see why the fact that those individuals had not received a
share in the money should be a reason for entitling them to claim against
the State that had transferred money to their State of nationality.
ICJ sentenza nel caso Diallo 2012
Par. 57. The Court recalls that the sum awarded to
Guinea in the exercise of diplomatic protection of
Mr. Diallo is intended to provide reparation for
the latter’s injury.
Corte edu Cipro c. Turchia (2014)
Equa soddisfazione (art. 41 CEDU) anche nel caso di ricorsi Statali
Par. 58
…The aforementioned sums are to be distributed by the applicant
Government to the individual victims of the violations found in the
principal judgment under these two heads (see, mutatis mutandis, the
judgment of the International Court of Justice in the case of Diallo
(Compensation), …
Previo esaurimento dei ricorsi interni
Article 14
Exhaustion of local remedies
1. A State may not present an international claim in respect of an injury
to a national or other person referred to in draft article 8 before the
injured person has, subject to draft article 15, exhausted all local
remedies.
2. “Local remedies” means legal remedies which are open to the
injured person before the judicial or administrative courts or bodies,
whether ordinary or special, of the State alleged to be responsible for
causing the injury. (…)
segue
Commentary
Draft article 14 seeks to codify the rule of customary international law
requiring the exhaustion of local remedies as a prerequisite for the
exercise of diplomatic protection.
This rule was recognized by the International Court of Justice in the
Interhandel case as “a well-established rule of customary international
law”
Nazionalità delle persone fisiche
Article 4
State of nationality of a natural person
For the purposes of the diplomatic protection of a natural person, a
State of nationality means a State whose nationality that person has
acquired, in accordance with the law of that State, by birth, descent,
naturalization, succession of States, or in any other manner, not
inconsistent with international law.
Nazionalità delle persone giuridiche
Article 9
State of nationality of a corporation
For the purposes of the diplomatic protection of a corporation, the
State of nationality means the State under whose law the corporation
was incorporated. However, when the corporation is controlled by
nationals of another State or States and has no substantial business
activities in the State of incorporation, and the seat of management
and the financial control of the corporation are both located in another
State, that State shall be regarded as the State of nationality.