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DIPLOMATIC PROTECTION AND OTHER MECHANISMS FOR THE PROTECTION…
serious human rights violations of the national abroad, as well as an obligation to
follow a fair procedure in processing the request for protection and to give reasons
for its final decision.
5. Conclusions
The author of this short comment concurs with the opinion expressed by John
Dugard that, “until the individual acquires comprehensive procedural rights under
international law, it would be a setback for human rights to abandon diplomatic
protection; as an important instrument in the protection of human rights, it
should be strengthened and encouraged”.
39
At the same time, one has to be aware
of the fact that diplomatic protection is and will continue to be an institution
“characterized by political uncertainty”. Therefore it seems to be advisable to also
explore other remedial options (in a broad sense) which are available to the home
state of a national (who was a victim of a serious human rights violation abroad)
and to try to encourage and push states to properly consider and use these options,
if it is reasonably possible. The evolution on the national level of individual states
leading to realistic limitations of the allegedly unlimited discretionary nature of
the exercise of diplomatic protection – limitations based on the considerations of
the rule of law, right to a fair process and legitimate expectations – could perhaps
be broadened on the national level and later mirrored on the international level by
widening the scope of international measures, procedures and steps to which the
above limitations would apply as well. Thus, similar considerations which applied
to the judicial review of the exercise of diplomatic protection could perhaps apply
to possible justiciability of decisions of the executive power to use any of these
additional mechanisms available within the framework of criminal law or possible
similar mechanisms in other areas of international law (again with appropriate
deference to the constitutional responsibility of the executive to make decisions
on matters of foreign affairs). In addition, on the level of international law, these
mechanism could be taken together in their context and interrelation with the
aim of inducing the home state of the injured individual to provide (or at least
seriously consider providing) any protective (remedial) measure towards the third,
responsible State, which is appopropriate and reasonably possible.
States have at their disposal various mechanisms and procedures which could
serve for the protection of their nationals against serious human rights violations
committed abroad. However, under international law, states are not obliged to
use any of these mechanisms; they have only the right to use them. Far too often
these rights remain only “on paper”. However speculative or “utopian” the above
suggestions might appear, it seems that the “absolute discretion” of states regarding
the question of whether and how to protect their nationals in cases of serious human
rights violations abroad deserve some kind of limitation stemming from national
and/or international law. States are after all created by concrete individuals, and
39
John Dugard,
supra
note 1, p.78.