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Evolution of Individual Rights and Change of Classical Perspective on Diplomatic Protection in International Law

  • DONG-A LAW REVIEW
  • 2013, (61), pp.409-434
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

LEE JIN-KYU 1

1동아대학교

Accredited

ABSTRACT

An higher level of individual rights through access to relevant bodies was achieved by an increase in the number of international human rights supervisory bodies and international commercial arbitral bodies after World War II. While individual communication has become a common feature in various fields of contemporary international law, it has not been implemented everywhere individuals have rights. But, still, today, there are many instruments, in particular in the field of human rights, which grant individual rights and, more and more often, also the right to enforce these rights. This entry will cover the enforcement of individual rights in international human rights law, international humanitarian law, and international economic law. In the early years of international law the individual had no place, no rights in the international legal order. Consequently if a national injured abroad was to be protected this could be done only by means of a fiction - that an injury to the national was an injury to the State itself. This fiction was, however, no more than a means to an end, the end being the protection of the rights of an injured national. Today the situation has changed dramatically. The individual is the subject of many primary rules of international law, both under custom and treaty, which protect him abroad, against foreign Governments. The individual has rights under international law but remedies are few. Diplomatic protection conducted by a State at inter-state level remains an important remedy for the protection of persons whose human rights have been violated abroad. Considering related situations, the main concern of diplomatic protection is gradually being moved from state's rights to individual rights. The basis of an action in diplomatic protection is the injury to a foreign national. In other words, the main objective of diplomatic protection is after all to remedy to an injury or damage produced to an individual rights' protection mechanism.

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