Recalde-Vela 189 of the “fiction”—which gave the state the necessary locus standi to espouse claims on behalf of its nationals—was essential, since individuals had no other mechanisms to turn to which would bring them redress for the violations they suffered. This view was also upheld in Nottebohm, where the International Court of Justice (ICJ) stated that ‘Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the state’.76 This has changed with the advent of human rights law and its oversight bodies, as will be discussed later. The Panevezys-Saldutiskis Railway Case is another landmark case for the doctrine of diplomatic protection regarding the necessity of a link between individual and state through the legal bond of nationality. In this case, the PCIJ pronounced itself on the issue of nationality77 and diplomatic protection, stating that ‘it is the bond of nationality between the state and the individual which (…) confers upon the state the right of diplomatic protection’.78 In other words, without the existence of this bond of nationality, the state does not have the locus standi it needs in order to bring claims against another state.79 Nationality is an essential element for the possibility of the state to exercise diplomatic protection, since without that bond, the necessary “fiction” of the injury against the state resulting from an injury towards one of its nationals cannot be present. For this reason, under the “traditional approach”, stateless persons could not benefit from diplomatic protection. However, there have been exceptions to this doctrine. The ICJ, as early as 1949 in its Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion, stated that ‘there are cases in which protection may be exercised by a state on behalf of persons not having its nationality’.80 In addition, the increasing ability of individuals to access redress mechanisms confronts the “traditional” doctrine of ­diplomatic protection,81 pushing it towards becoming obsolete. Adding to this is the fact that stateless persons have been able to access justice and seek redress for violations suffered before various international legal mechanisms,82 as the subsequent sections will show. 3.2 Diplomatic protection and its interaction with human rights The fast-paced development of international human rights standards, practices and judicial/semi-judicial mechanisms over the last few decades have decreased the use for diplomatic protection as a means for individuals to obtain redress for internationally wrongful acts. According to Vermeer-Künzli, there is ‘no doubt that the injury that stands at the basis of the exercise of diplomatic protection is an injury of individual rights’.83 However, the tenets of “traditional” diplomatic protection can be at odds with the premises of international human rights law, especially regarding the ‘autonomy of the individual to seek redress for injury’84 under international law.85 This is because autonomy is not permitted under the diplomatic protection approach for seeking redress. Even though both approaches have a similar goal—redress for violations of rights—they take very different paths to attain their goal. According to Orrego Vicuña, ‘The law of human rights…opened up a clear path for the direct access of the individual to international mechanisms for the assertion of claims’.86 On the other hand, the diplomatic protection approach remains focused on the state, 76 77 78 79 80 81 82 83 84 85 86 Nottebohm Case (Liechtenstein v Guatemala) ‘second phase’ [1955] ICJ, ICJ Reports 1955, at 24. ‘This nationality must, according to leading opinion, be present both at the time when the practice in breach of international law took place as well as at the time protection is to be exercised’. K Hailbronner, ‘Nationality in Public International Law and European Law’ in R Bauböck (eds), Acquisition and Loss of Nationality: Policies and Trends in 15 European Countries (1st, AUP, 2006). Panevezys-Saldutiskis Railway Case (Republic of Estonia v. Republic of Lithuania) [1939] PCIJ, Ser. A/B, No. 76, p. 16. H Lauterpacht, in E Lauterpacht (ed.) International Law: Being the Collected Papers of Hersch Lauterpacht, Vol. 1 (Cambridge University Press, 1970), at 401–402 as cited in C Whelton, ‘The United Nations Compensation Commission and International Claims Law: A Fresh Approach’ (1993) 25 Ottawa Law Review 607. Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion [1949] ICJ, at 181. Ibid, at 1–2. Such as the Inter-American Court of Human Rights (i.e. Yean and Bosico case and the Expelled Dominican and Haitians case), the European Court of Human Rights (i.e. the Kim v Russia case, Karassev case), the African Committee on the Rights and Welfare of the Child (i.e. Nubian children case) the African Commission on Human and People’s Rights. This is true even before international criminal tribunals, such as the International Criminal Court, which is the first international criminal tribunal which allows victims to participate in the proceedings and to seek and obtain redress for the violations suffered, irrespective of nationality or lack thereof. Furthermore, the Extraordinary Chambers in the Courts of Cambodia allows victims to participate as parties in the proceedings—as partie civiles—and stateless victims are currently parties to the proceedings in case 004. A Vermeer-Künzli, ‘As If: The Legal Fiction in Diplomatic Protection’ (2007) 18(1) European Journal of International Law, at 40. DJ Bederman, ‘State-to-State Espousal of Human Rights Claims’ (2011) 1 Virginia Journal of International Law 3, at 5. Ibid, at 6. Orrego Vicuña also proposes that, in light of the increasing role of the individual under international law and the ever-decreasing role of the state in protecting its nationals for the purpose of seeking redress for human rights violations, diplomatic protection could remain as a mechanism to ‘safeguard of the economic interests of the individual’. F Orrego Vicuña, ‘Changing Approaches to