CYIL Vol. 5, 2014

DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION… 3. Limitations of the exercise of diplomatic protection under international law Apart from the evolution concerning the limitations of the discretionary nature of diplomatic protection on the national (constitutional) plane of individual states, are there any similar tendencies on the international plane, in areas of international law which are not based on relevant national practice and opinio iuris of individual states? As far as the systems of universal and European protection of human rights are concerned, diplomatic protection is not regarded as a human right on the international level and the discretionary decisions by States concerning the exercise of diplomatic protection have not been put under scrutiny based on the right to a fair trial and to an effective remedy. 28 However, V. Pergantis pointed out that a construction under the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which could underpin a “right to jusiticiability of the decisions concerning the exercise of diplomatic protection” could be based on the theory of positive obligations, i.e. a general obligation of the Contracting States under Article 1 of the ECHR to ensure the enjoinment of rights and liberties to every person within their jurisdiction, which includes also positive measures of preventative or repressive character. 29 Perhaps, the jurisdiction under Article 1 of the ECHR could be potentially grounded not in the territorial sovereignty but in the claimant’s nationality, and the positive obligation to protect nationals from the acts of third-party states “could be based on a parallel with cases of ill-treatment by private actors in which the state is liable for treatment which the authorities discover in the course of their duties and fail to prevent” (it is true that in case of diplomatic protection, the ill-treatment occurs in a foreign state, i.e. outside the territorial jurisdiction of the national state; however diplomatic protection is a legal tool which the state has a right to exercise under international law and which is designed exactly for these extraterritorial cases). 30 In the same vein, some authors also question whether it is legitimate (and, ultimately, legal) to draw such a firm line between the human rights standards and protection applicable towards the nationals within the territorial jurisdiction of their home state, on the one hand, and outside these borders, on the other hand. 31 Or, in other words, whether the citizens abroad are not entitled to expect the government to take whatever steps are reasonably possible (within the confines of international law) to ensure that they are 28 V. Pergantis, supra note 19, p. 389. See further for example judgment by the European Court of Human Rights in the Case of M. and others v. Italy and Bulgaria (application no. 40020/03), 17 December 2012, para. 127 (“Moreover, the Convention organs have repeatedly stated that the Convention does not contain a right which requires a High Contracting Party to exercise diplomatic protection, or espouse an applicant’s complaints under international law or otherwise to intervene with the authorities of another State on his or her behalf.”). 29 V. Pergantis, supra note 19, pp. 389-390. 30 Elizabeth Prochaska, Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of Canada, 7 October 2009, EJIL: Talk!; available at: http://www.ejiltalk.org/testing-the-limits-of- diplomatic-protection-khadr-v-the-prime-minister-of-canada/ (visited 28 June 2014). 31 Stephen Peté, Max Du Plessis, South African nationals abroad and their right to diplomatic protection – lessons from the “Mercenaries Case”, 22 South African Journal on Human Rights, 2006, p. 462 et seq .

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