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treated in accordance with the applicable human rights standards. Possible exercise of
diplomatic protection based on proper consideration in accordance with the rule of
law (fair procedure) requirements could or should be one of these reasonably possible
steps. As Mr. John Dugard put it, “if a State party to a human rights convention
is required to ensure to everyone within its jurisdiction effective protection against
violation of the rights contained in the convention and to provide adequate means of
redress, there is no reason why a State of nationality should not be obliged to protect
its own national when his or her most basic human rights are seriously violated
abroad.”
32
4. Other Mechanisms for the Protection of the Individual
against Serious Human Rights Violations
The scope of procedures which are available to the individual on the international
plane to apply for an efective remedy for fundamental human rights violations
suffered abroad – in a state which is not subject to the obligatory jurisdiction of
a universal or regional human rights mechanisms – is very limited, or, better said,
virtually non-existent. Some theoretically available procedures were recognized as
illegal: international courts already rejected the possibility that individuals could
make civil claims against foreign states or foreign state officials before the courts of
their home states for damages arising out of serious human rights violations, such
as torture, committed by the foreign states (foreign state officials) concerned on
their own territory.
33
Interestingly, in one of these proceedings before the European
Court of Human Rights (in Al-Adsani v. United Kingdom), the British government
acknowledged, in a response to allegations that the applicant was deprived of any
effective remedy for fundamental human rights violations, that “there were other,
traditional means of redress for wrongs of this kind available to the applicant, namely
diplomatic representations or an inter-State claim”.
34
It is also to be noted that the
International Court of Justice, in its decision of 3 February 2012 in the dispute
between Germany and Italy (Jurisdictional Imunity of the State), refused the argument
that “courts were justified in denying Germany the immunity to which it would
otherwise have been entitled, because all other attempts to secure compensation for
the various groups of victims involved in the Italian proceedings had failed.” The
Court stated that it can find no basis in the State practice from which customary
international law is derived that international law makes the entitlement of a State
to immunity dependent upon the existence of effective alternative means of securing
redress. However, according to the Court, the claims of Italian nationals in this case
32
First report on diplomatic protection by Mr. John Dugard, Special Rapporteur, doc. A/CN.4/506,
7 March 2000, p. 33.
33
See for example judgment by the European Court of Human Rights of 21 November 2001 in Al-
Adsani v. The United Kingdom, Application No. 35763/97; and judgment of 14 January 2014 in Jones
and Others v. The United Kingdom, Applications nos.
34356/06
and
40528/06.
34
ECtHR, judgment of 21 November 2001, Al-Adsani v. United Kingdom, Application No. 35763/97,
para. 50.