Protezione diplomatica, diritti umani e obblighi erga omnes

This paper discusses the recent trends affecting diplomatic protection. , with special regard to its suitability as a mechinaism of human rights protection. The author acknowledges that diplomatic protection is a valuable instrument in the field of human rights protection, but does not accept, as many scholars do, the idea of the international legal personality of individuals. On the contrary she discusses this evolution of diplomatic protection according the category of erga omnes obligations (i.e. obligations vis-à-vis the international community as a whole). The premise of this approach is that these obligations not necessarily determines an absolute equality of the rights of all States. This is true even as concerns human rights: in case of violations against foreigners, it is not only breached a collective interest towards all States, but also the individual interest of the national State to obtain compliance with international standards for the treatment of its citizens. This is why this State has a special (and then prior) entitlement to invoke the international responsibility of the responsible State. The central problem is then how to define the relationship between the reaction of the injured State and that of all other states. On the basis of the approach suggested, the paper scrutinizes the results of the codification of diplomatic protection by the international Law Commission . The main criticisms concern the following points: the inconsistency with the codification of Sate responsibility and the lack of a unique theoretical basis in order to justify those rules included in the draft articles which seem to favor a greater consideration of the humanitarian dimension of diplomatic protection.