CYIL Vol. 5, 2014

DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION… serious human rights violations of the national abroad, as well as an obligation to follow a fair procedure in processing the request for protection and to give reasons for its final decision. 5. Conclusions The author of this short comment concurs with the opinion expressed by John Dugard that, “until the individual acquires comprehensive procedural rights under international law, it would be a setback for human rights to abandon diplomatic protection; as an important instrument in the protection of human rights, it should be strengthened and encouraged”. 39 At the same time, one has to be aware of the fact that diplomatic protection is and will continue to be an institution “characterized by political uncertainty”. Therefore it seems to be advisable to also explore other remedial options (in a broad sense) which are available to the home state of a national (who was a victim of a serious human rights violation abroad) and to try to encourage and push states to properly consider and use these options, if it is reasonably possible. The evolution on the national level of individual states leading to realistic limitations of the allegedly unlimited discretionary nature of the exercise of diplomatic protection – limitations based on the considerations of the rule of law, right to a fair process and legitimate expectations – could perhaps be broadened on the national level and later mirrored on the international level by widening the scope of international measures, procedures and steps to which the above limitations would apply as well. Thus, similar considerations which applied to the judicial review of the exercise of diplomatic protection could perhaps apply to possible justiciability of decisions of the executive power to use any of these additional mechanisms available within the framework of criminal law or possible similar mechanisms in other areas of international law (again with appropriate deference to the constitutional responsibility of the executive to make decisions on matters of foreign affairs). In addition, on the level of international law, these mechanism could be taken together in their context and interrelation with the aim of inducing the home state of the injured individual to provide (or at least seriously consider providing) any protective (remedial) measure towards the third, responsible State, which is appopropriate and reasonably possible. States have at their disposal various mechanisms and procedures which could serve for the protection of their nationals against serious human rights violations committed abroad. However, under international law, states are not obliged to use any of these mechanisms; they have only the right to use them. Far too often these rights remain only “on paper”. However speculative or “utopian” the above suggestions might appear, it seems that the “absolute discretion” of states regarding the question of whether and how to protect their nationals in cases of serious human rights violations abroad deserve some kind of limitation stemming from national and/or international law. States are after all created by concrete individuals, and 39 John Dugard, supra note 1, p.78.

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