CYIL 2014

175

DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION…

3. Limitations of the exercise of diplomatic protection under international law

Apart from the evolution concerning the limitations of the discretionary nature

of diplomatic protection on the national (constitutional) plane of individual states, are

there any similar tendencies on the international plane, in areas of international law

which are not based on relevant national practice and

opinio iuris

of individual states?

As far as the systems of universal and European protection of human rights are

concerned, diplomatic protection is not regarded as a human right on the international

level and the discretionary decisions by States concerning the exercise of diplomatic

protection have not been put under scrutiny based on the right to a fair trial and to

an effective remedy.

However, V. Pergantis pointed out that a construction under the

Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)

which could underpin a “right to jusiticiability of the decisions concerning the exercise

of diplomatic protection” could be based on the theory of positive obligations, i.e. a

general obligation of the Contracting States under Article 1 of the ECHR to ensure

the enjoinment of rights and liberties to every person within their jurisdiction, which

includes also positive measures of preventative or repressive character.

Perhaps, the

jurisdiction under Article 1 of the ECHR could be potentially grounded not in the

territorial sovereignty but in the claimant’s nationality, and the positive obligation

to protect nationals from the acts of third-party states “could be based on a parallel

with cases of ill-treatment by private actors in which the state is liable for treatment

which the authorities discover in the course of their duties and fail to prevent” (it

is true that in case of diplomatic protection, the ill-treatment occurs in a foreign

state, i.e. outside the territorial jurisdiction of the national state; however diplomatic

protection is a legal tool which the state has a right to exercise under international law

and which is designed exactly for these extraterritorial cases).

In the same vein, some

authors also question whether it is legitimate (and, ultimately, legal) to draw such a

firm line between the human rights standards and protection applicable towards the

nationals within the territorial jurisdiction of their home state, on the one hand,

and outside these borders, on the other hand.

Or, in other words, whether the

citizens abroad are not entitled to expect the government to take whatever steps are

reasonably possible (within the confines of international law) to ensure that they are

V. Pergantis,

supra

note 19, p. 389. See further for example judgment by the European Court of Human

Rights in the Case of M. and others v. Italy and Bulgaria (application no. 40020/03), 17 December

2012, para. 127 (“Moreover, the Convention organs have repeatedly stated that the Convention does

not contain a right which requires a High Contracting Party to exercise diplomatic protection, or

espouse an applicant’s complaints under international law or otherwise to intervene with the authorities

of another State on his or her behalf.”).

V. Pergantis,

supra

note 19, pp. 389-390.

Elizabeth Prochaska, Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of

Canada, 7 October 2009, EJIL: Talk!;

available at:

http://www.ejiltalk.org/testing-the-limits-of-

diplomatic-protection-khadr-v-the-prime-minister-of-canada/ (visited 28 June 2014).

Stephen Peté, Max Du Plessis, South African nationals abroad and their right to diplomatic protection –

lessons from the “Mercenaries Case”, 22 South African Journal on Human Rights, 2006, p. 462

et seq