2023/03/15 by Fabbricotti, Alberta
#Diplomatic protection #International Law Commission #International law #International protection of human rights #Refugee Law #Responsibility of States #War #aggression #diplomatic protection #international refugee law #international responsibility of States
paper · doi:10.57947/qrp.v62i1.45
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 that has no basis in traditional international law but which is advanced on the basis of new developments in international practice. The diplomatic protection of refugees by their State of Asylum is therefore the main thesis addressed by the present essay. The questions examined in this article involve various areas and institutes of international law. In particular, two codification projects elaborated by the International Law Commission are here considered: 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 (binding) international conventions? As an appendix, it was deemed interesting to investigate the above thesis considering the huge mass of Ukrainians who fled from their country and who poured into most European countries. Regarding this exodus, the legal reasoning supporting the entitlement of the hosting States to exercise the diplomatic protection is particularly complex and has to unravel in two steps. The first step perlustrates the entitlement/capacity of the receiving State to exercise his right of diplomatic protection. The second step analyses the accountability, under the international law regime on State responsibility, of the State that invaded and occupied the territories from which the Ukrainians were forced to flee.