CYIL Vol. 5, 2014

DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION… of the State concerning the exercise of diplomatic protection to review by a court or other independent national authority. The Special Rapportuer based his draft on “signs” of a legal obligation to protect nationals abroad, as contained in recent legal opinion, judicial practice of a few States and generally formulated constitutional provisions in a number of States recognizing the right of the individual to receive protection while residing abroad. 9 The Special Rapporteur notes that “it is uncertain whether and to what extent these constitutional rights are enforceable under the municipal law of those countries and whether they go beyond the right of access to consular officials abroad”; however, “on the other hand they suggest that certain States consider diplomatic protection for their nationals abroad to be desirable”; in addition, “declared rights are sometimes taken seriously by courts and there is always the possibility that they will come to be enforced in time.” 10 However, after an extensive debate the International Law Commission did not adopt this article on the grounds that “the general view was that the issue was not yet ripe for the attention of the Commission and that there was a need for more state practice and, particularly, more opinio iuris before it could be considered”. 11 2. Limitations of the exercise of diplomatic protection under national law One of the leading domestic decisions concerning the limits of the discretionary power to exercise diplomatic protection is the judgment by the Constitutional Court of South Africa of 4 August 2004 in the case Kaunda v. President of the Republic of South Africa. In Kaunda, the Court turned to the South African Constitution (which provides that South African citizens are “equally entitled to the rights, privileges and benefits of citizenship”), and, even if it rejected that the provision contains a right to diplomatic protection, it found, nevertheless, that South African nationals “are entitled to request South Africa for protection under international law against wrongful acts of a foreign state”, namely that they are entitled to “have the request considered and responded to appropriately”, and if the response was irrational or in bad faith, the court could intervene by requiring the government to “deal with the matter properly”. Furthermore, if it was clear that the citizen was subject to a “gross abuse of international human rights norms,” and the government refused to act, the court could order it to “take appropriate action.” 12 On the other hand, the Court contended that the “actions taken in furtherance of diplomatic protection involve foreign policy and thus call for a significant degree of deference to the choices made by the government in response to a request for such protection”: the government (c) The injured person does not have the effective and dominant nationality of the State. 3. States are obliged to provide in their municipal law for the enforcement of this right before a competent domestic court or other independent national authority. 9 First report on diplomatic protection by Mr. John Dugard, supra note 7, pp. 30-32. 10 John Dugard, supra note 1, p. 81. 11 Report of the International Law Commission, 52nd session (2000), doc. A/55/10, pp. 78-79. 12 Kaunda v. President of the Republic of South Africa. Case CCT 23/04. 2004 (10) BCLR, Casenote by Mary Coombs, American Journal of International Law , Vol. 99, 2005, p. 7.

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