CYIL Vol. 5, 2014

PAVEL CABAN CYIL 5 ȍ2014Ȏ and the inappropriateness of the judicial function for assessing the correctness of the concrete diplomatic measures taken. 24 As regards the overall viability and effectiveness of diplomatic protection as a tool for protecting nationals against serious human rights violations abroad, V. Pergantis as a representative of rather sceptical authors expressed concerns that diplomatic protection remains a highly political institution (“characterized by political uncertainty inherent in its discretionary nature that primarily serves State interests”) and that the recognition of a certain obligation to exercise diplomatic protection could either “create serious frictions between States, as there would probably be floods of requests for the exercise of diplomatic protection that States would be obliged to take into account, or the constant invocation thereof could lead to its weakening and trivialization”. On the other hand, other authors are of the opinion that in these cases international comity and political “scruples” should be less important given the fact that the foreign government must have breached international law for diplomatic protection even to be possible to exercise; in addition, foreign governments should be more likely to accept attempted diplomatic protection pursuant to the decision of an independent judiciary. Thus, these authors hypothesize that more widespread exercise of diplomatic protection will not necessarily have a significant negative impact on foreign relations and express the opinion that for the “political” objection to be persuasive, “empirical evidence of a non-trivial effect on foreign relations is needed rather than mere ritualistic claims of the expenditure of ‘diplomatic credit’”. 25 (It can be added that referrals to such a “diplomatic credit” may very well just hide simple “too human” inactivity, lack of will and reluctance of the governmental institutions and concrete responsible officials.) In addition, the existence of some kind of, even if only generally and broadely defined, duty to consider the exercise of diplomatic protection or the use of other procedure aiming at protecting nationals against serious violations of their human rights abroad (see below) could encourage foreign states responsible for such violations to meet their international law obligations – simply since these states would be aware of the fact that a protecting government “may act”. 26 In addition, a domestic duty described above could extend to require the government to make (consider making) diplomatic representations (i.e. “demarches or other diplomatic action that do not involve the invocation of the legal responsibility of another state, such as informal requests for corrective action”) which do not amount to diplomatic protection stricto sensu . 27 In such a case, the individual could be entitled to certain remedy despite the absence of one or more international law prerequisites for the exercise of diplomatic protection.

24 Ibid., p. 383. 25 Ch. Tran, supra note 20, p. 316-317. 26 Ibid., p. 319. 27 Report of the International Law Commission, 58th session (2006), doc. A/61/10, p. 27, para. 8.

174