CYIL 2014

171

DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION…

of the State concerning the exercise of diplomatic protection to review by a court

or other independent national authority. The Special Rapportuer based his draft on

“signs” of a legal obligation to protect nationals abroad, as contained in recent legal

opinion, judicial practice of a few States and generally formulated constitutional

provisions in a number of States recognizing the right of the individual to receive

protection while residing abroad.

The Special Rapporteur notes that “it is uncertain

whether and to what extent these constitutional rights are enforceable under the

municipal law of those countries and whether they go beyond the right of access

to consular officials abroad”; however, “on the other hand they suggest that certain

States consider diplomatic protection for their nationals abroad to be desirable”;

in addition, “declared rights are sometimes taken seriously by courts and there is

always the possibility that they will come to be enforced in time.”

However, after an

extensive debate the International Law Commission did not adopt this article on the

grounds that “the general view was that the issue was not yet ripe for the attention of

the Commission and that there was a need for more state practice and, particularly,

opinio iuris

before it could be considered”.

2. Limitations of the exercise of diplomatic protection under national law

One of the leading domestic decisions concerning the limits of the discretionary

power to exercise diplomatic protection is the judgment by the Constitutional Court

of South Africa of 4 August 2004 in the case Kaunda v. President of the Republic of

South Africa. In Kaunda, the Court turned to the South African Constitution (which

provides that South African citizens are “equally entitled to the rights, privileges and

benefits of citizenship”), and, even if it rejected that the provision contains a right

to diplomatic protection, it found, nevertheless, that South African nationals “are

entitled to request South Africa for protection under international law against

wrongful acts of a foreign state”, namely that they are entitled to “have the request

considered and responded to appropriately”, and if the response was irrational or in

bad faith, the court could intervene by requiring the government to “deal with the

matter properly”. Furthermore, if it was clear that the citizen was subject to a “gross

abuse of international human rights norms,” and the government refused to act, the

court could order it to “take appropriate action.”

On the other hand, the Court

contended that the “actions taken in furtherance of diplomatic protection involve

foreign policy and thus call for a significant degree of deference to the choices made

by the government in response to a request for such protection”: the government

3. States are obliged to provide in their municipal law for the enforcement of this right before a competent

domestic court or other independent national authority.

First report on diplomatic protection by Mr. John Dugard,

supra

note 7, pp. 30-32.

John Dugard,

supra

note 1, p. 81.

Report of the International Law Commission, 52nd session (2000), doc. A/55/10, pp. 78-79.

Kaunda v. President of the Republic of South Africa. Case CCT 23/04. 2004 (10) BCLR, Casenote by

Mary Coombs,

American Journal of International Law

, Vol. 99, 2005, p. 7.