CYIL Vol. 5, 2014

PAVEL CABAN CYIL 5 ȍ2014Ȏ of the crime concerned. Nevertheless, similarly to diplomatic protection, the states are only entitled to use these criminal law options, having, from the point of view of international law, “unlimited” discretion in this regard. Under the currrent state of international law, the role of the state of nationality of the individual who was a victim of serious human rights violation abroad is often crucial. It is true that the international law regime of the responsibility of states allows all other states other than an injured state to invoke the responsibility of another state if the obligation breached is owed to the international community as a whole – which is, in principle, the case of serious violations of basic human rights of an individual. 38 However, to suppose that states “other than an injured state” which have no personal or any other “tangible” connection with the case will, as a rule, actively invoke responsibility of another, responsible state (having regard to the empirical fact that the state of nationality of the injured individual is often reluctant to invoke such responsibility even in self-evident cases) is, I dare to exaggerate a bit, “to engage in a fantasy which, unlike fiction, has no place in legal reasoning”. It seems that the attention should be focused on the home state of the injured individual, which is directly and “personally” connected with the injury of the individual. What if the international mechanisms described above (as well as possible other mechanisms on the international plane which could serve, directly or indirectly, as a remedy in cases when a national was subject to serious human rights violations abroad) were considered in the context and, in an analogy to the Draft Article 4 proposed by the Special Rapportuer for diplomatic protection and under similar conditions (i.e. unless the injured person is able to bring a claim for such injury before a competent international court or tribunal etc.), a state would be obliged to take any steps reasonably possible to protect its national, i.e. to exercise, or at least to properly consider the posibility of exercising either diplomatic protection or the criminal law options decsribed above (possibly using appropriate dispute settlement mechanisms, if the case is covered by relevant international convention), or at least making diplomatic representations or any other available steps provided for by international customary or treaty law which could be used as a remedy protecting the individual and individual’s interests? Perhaps, de lege ferenda , international law (based on relevant practice and opinio iuris of states) could turn all the rights and “absolute discretions” available to the state of nationality of the injured individual into some kind of an obligation to use or at least properly consider the possibility of using the measures or procedures which could reasonably serve as a remedy for 38 See Article 48(1)(b) of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001. It is to be noted that the conditions for such invocation are rather confusing, since Article 48(3) makes the invocation of the responsibility by “any state” subject to exhaustion of local remedies and nationality of claims. For detailed analysis of this problem see, inter alia , Annemarieke Vermeer-Künzli, A Matter of Interest: Diplomatic Protection and State Responsiblity Erga Omnes , International & Comparative Law Quarterly, Vol. 56, July 2007 (Issue 3), p. 553 et seq .

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