CYIL Vol. 5, 2014

PAVEL CABAN CYIL 5 ȍ2014Ȏ treated in accordance with the applicable human rights standards. Possible exercise of diplomatic protection based on proper consideration in accordance with the rule of law (fair procedure) requirements could or should be one of these reasonably possible steps. As Mr. John Dugard put it, “if a State party to a human rights convention is required to ensure to everyone within its jurisdiction effective protection against violation of the rights contained in the convention and to provide adequate means of redress, there is no reason why a State of nationality should not be obliged to protect its own national when his or her most basic human rights are seriously violated abroad.” 32 4. Other Mechanisms for the Protection of the Individual against Serious Human Rights Violations The scope of procedures which are available to the individual on the international plane to apply for an efective remedy for fundamental human rights violations suffered abroad – in a state which is not subject to the obligatory jurisdiction of a universal or regional human rights mechanisms – is very limited, or, better said, virtually non-existent. Some theoretically available procedures were recognized as illegal: international courts already rejected the possibility that individuals could make civil claims against foreign states or foreign state officials before the courts of their home states for damages arising out of serious human rights violations, such as torture, committed by the foreign states (foreign state officials) concerned on their own territory. 33 Interestingly, in one of these proceedings before the European Court of Human Rights (in Al-Adsani v. United Kingdom), the British government acknowledged, in a response to allegations that the applicant was deprived of any effective remedy for fundamental human rights violations, that “there were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim”. 34 It is also to be noted that the International Court of Justice, in its decision of 3 February 2012 in the dispute between Germany and Italy (Jurisdictional Imunity of the State), refused the argument that “courts were justified in denying Germany the immunity to which it would otherwise have been entitled, because all other attempts to secure compensation for the various groups of victims involved in the Italian proceedings had failed.” The Court stated that it can find no basis in the State practice from which customary international law is derived that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress. However, according to the Court, the claims of Italian nationals in this case 32 First report on diplomatic protection by Mr. John Dugard, Special Rapporteur, doc. A/CN.4/506, 7 March 2000, p. 33. 33 See for example judgment by the European Court of Human Rights of 21 November 2001 in Al- Adsani v. The United Kingdom, Application No. 35763/97; and judgment of 14 January 2014 in Jones and Others v. The United Kingdom, Applications nos. 34356/06 and 40528/06. 34 ECtHR, judgment of 21 November 2001, Al-Adsani v. United Kingdom, Application No. 35763/97, para. 50.

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