189 / 532
173
DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION…
Thus, the constraints on the originally “unlimited” discretion whether to exercise
diplomatic protection (or, rather, the right to a justiciability of decisions of the executive
power whether to exercise diplomatic protection) are found, in rather rudimentry form
and sparsely, in the national legal systems of several states. This national practice
of states, if it becomes more significant and widespread, could be considered as a
sign of State practice having an impact on the creation of relevant international law
norms.
19
According to some opinions, the basis of this, however loosely defined, “right
to justiciability of the decisions concerning the exercise of diplomatic protection” (or
justiciability of the obligation of the state “to consider the possibility of exercising
diplomatic protection”)
could be found in the context of the bond of nationality as
a “two-way” link consisting of loyality on the side of a national, and protection on
the side of a State.
20
This duty of “the ruler” to protect its nationals in return for their
“allegiance” is already manifested for example in the passive personality principle, i.e.
the principle establishing criminal jurisdiction over extraterritorial crimes committed
by foreigners and causing injury to nationals (as well as, to some extent, in the exercise
of protective and active personality and the non-extradition of nationals).
21
What should be the content of such a “right to justiciability” or “obligation to
consider”? The basic or minimal content of these was indicated in the decisions
described above. In general, the decisions and opinions suggesting to limit the
“absolute” discretion in this field are based on the idea that the control of State’s
discretion should be placed in the context of the right to due process (rule of law),
to which the prohibiton of arbitrariness and the doctrine of legitimate expectations
belong.
22
For example, according to some separate opinions in the Kaunda decision
of the South African Constitutional Court, the right to citizenship provided for in
the South African Constitution was a basic human right which included a duty to
properly consider the request for diplomatic protection, as well as a duty to follow a
fair procedure in processing the request and a duty to give reasons for the decision on
the request. It is to be noted that such judicial review does not mean that the courts
should be entitled to order the governmental authorities to take specific measures
in exercising diplomatic protection: as pointed out by V. Pergantis, an obligation to
examine the request for diplomatic protection is not the same as the obligation to
exercise diplomatic protection.
23
Thus, even according to these opinions, the scope
of judicial review should be limited, the justification for limiting the scope of the
judicial review being mainly the political nature of relevant governmental decisions
19
Vasileios Pergantis, Towards a “Humanization” of Diplomatic Protection?, 66 ZaöRV, 2006, p. 379.
20
V. Pergantis,
supra
note 19, p. 380; Christopher Tran, Government duties to provide diplomatic
protection in a comparative perspective,
Australian Law Journal
, Vol. 85 (2011), p. 304, citing the
decision of Australian court in Hicks v. Ruddock Case (Hicks v Ruddock (2007)), 156 FCR 574.
21
Zsuzsanna Deen-Racsmány, Diplomatic protection and International Criminal Law: Can the Gap Be
Bridged?
Leiden Journal of International Law
, Vol. 20 (2007), Issue 4, pp. 911-912.
22
V. Pergantis,
supra
note 19, p. 386.
23
Ibid.