CYIL 2014

174

PAVEL CABAN

CYIL 5 ȍ2014Ȏ

and the inappropriateness of the judicial function for assessing the correctness of the

concrete diplomatic measures taken.

As regards the overall viability and effectiveness of diplomatic protection as a tool

for protecting nationals against serious human rights violations abroad, V. Pergantis as

a representative of rather sceptical authors expressed concerns that diplomatic protection

remains a highly political institution (“characterized by political uncertainty inherent

in its discretionary nature that primarily serves State interests”) and that the recognition

of a certain obligation to exercise diplomatic protection could either “create serious

frictions between States, as there would probably be floods of requests for the exercise

of diplomatic protection that States would be obliged to take into account, or the

constant invocation thereof could lead to its weakening and trivialization”. On the

other hand, other authors are of the opinion that in these cases international comity

and political “scruples” should be less important given the fact that the foreign

government must have breached international law for diplomatic protection even

to be possible to exercise; in addition, foreign governments should be more likely to

accept attempted diplomatic protection pursuant to the decision of an independent

judiciary. Thus, these authors hypothesize that more widespread exercise of diplomatic

protection will not necessarily have a significant negative impact on foreign relations

and express the opinion that for the “political” objection to be persuasive, “empirical

evidence of a non-trivial effect on foreign relations is needed rather than mere

ritualistic claims of the expenditure of ‘diplomatic credit’”.

(It can be added that

referrals to such a “diplomatic credit” may very well just hide simple “too human”

inactivity, lack of will and reluctance of the governmental institutions and concrete

responsible officials.) In addition, the existence of some kind of, even if only generally

and broadely defined, duty to consider the exercise of diplomatic protection or the

use of other procedure aiming at protecting nationals against serious violations of

their human rights abroad (see below) could encourage foreign states responsible for

such violations to meet their international law obligations – simply since these states

would be aware of the fact that a protecting government “may act”.

In addition, a domestic duty described above could extend to require the government

to make (consider making) diplomatic representations (i.e. “demarches or other

diplomatic action that do not involve the invocation of the legal responsibility of

another state, such as informal requests for corrective action”) which do not amount to

diplomatic protection

stricto sensu

In such a case, the individual could be entitled

to certain remedy despite the absence of one or more international law prerequisites

for the exercise of diplomatic protection.

Ibid.,

p. 383.

Ch. Tran,

supra

note 20, p. 316-317.

Ibid.,

p. 319.

Report of the International Law Commission, 58th session (2006), doc. A/61/10, p. 27,

para. 8.