The Diplomatic Protection of Refugees by their State of Asylum. A Possible Scenario for the Day After the Russian-Ukrainian Conflict

This article intends to verify the possibility of legitimizing the action in diplomatic protection of refugees vis-à-vis the State from which they have fled by the receiving State. This is a hypothesis which has no basis in traditional international law but which is advanced on the basis of new developments in international practice. It seems particularly useful to investigate this hypothesis in the light of the significant mass of Ukrainian refugees who have poured into and been welcomed in most European countries. In the case of Ukrainian refugees, the legal reasoning obviously has to unravel in two steps: the first concerns the possibility of acting under diplomatic protection by the State of refuge, and the second pertains instead to the taking over, in the regime of international responsibility, of the occupying State territories from which refugees have been forced to flee due to war. It is therefore a complex reasoning that involves various areas and institutes of international law. In particular, two codification projects elaborated by the International Law Commission are examined: the Draft articles relating to the diplomatic protection of 2006 and the Draft articles on the international responsibility of States of 2001. Is it just a coincidence that both of these projects have not resulted in proper international conventions?