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Diplomatic Protection: Taking Human Rights Extraterritorially

  • Noura Karazivan

Summary

This article argues that states should have a limited obligation — and not only a privilege — to extend diplomatic protection to their nationals when they are facing violations of their most basic human rights abroad. The author addresses the current state of international law regarding diplomatic protection, with a focus on the International Law Commission's failed attempt to impose a duty on states to exercise protection in cases of jus cogens violations. A review of domestic case law, particularly in the United Kingdom, Canada, Germany, and South Africa, shows that while some courts recognize legitimate expectations to receive diplomatic protection, all are reluctant to exercise judicial review of a denial of diplomatic protection. The author nevertheless examines whether adherence to international human rights treaties could entail a positive obligation for states to exercise diplomatic protection in order to protect the human rights of their nationals that are ill-treated abroad.

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1 This article focuses on single nationality. The scope of diplomatic protection in cases of dual nationality is explored by Forcese, C., “Shelter from the Storm: Rethinking Diplomatic Protection of Dual Nationals in Modern International Law” (2005) 37 Geo. Wash. Int’ l L. Rev. 469.

2 Erasmus, G. and Davidson, L., “Do South Africans Have a Right to Diplomatic Protection?” (2000) 25 S.A. Y.B. Int’ l L. 113 at 127.

3 Soeringv. UK, no. 14038/88 (7July 1989) E.C.H.R. [Soering].

4 ILC, Diplomatic Protection: Titles and Texts of the Draft Articles on Diplomatic Protection Adopted by the Drafting Committee on Second Reading, UN Doc A/CN.4/L.684 (2006) at 1 , Draft Article 1 .

5 Geck, W. K., “Diplomatic Protection,” in Bernhardt, R. , ed., Encyclopedia of Public International Law, volume 1 (Amsterdam: North Holland Publishing Company, 1992 1056.

6 For example, the customary rules on the treatment of aliens: “It is clear that those provisions of the Universal Declaration of Human Rights which have become part of international customary law are part of the international minimum standard for the treatment of the persons of aliens.” Dugard, J. R., International Law: A South African Perspective (Kenwyn: Juta, 2006) at 233.

7 See, for example, LaGrand (Germany v. United States of America), Merits, [2001] I.C.J. Rep. 466, where the International Court of Justice (ICJ) recognized that individual rights arising under the Vienna Convention on Consular Relations, infra note 102, could be claimed through diplomatic protection.

8 M. Bennouna, Preliminary Report on Diplomatic Protection, UN Doc. A/CN.4/484 (1998) at para. 16.

9 Geck, supra note 5 at 1057.

10 Brierly, J. L., “The Theory of Implied State Complicity in International Claims” (1928) 9 Br. Y.B. Int’ l L. 47.

11 Geck, supra note 5 at 1057. The possibility that individuals have standing to request performance of a treaty obligation by their own state such as the right to require consular assistance is considered by Warbrick, C., “Diplomatic Representations and Diplomatic Protection” (2002) 51 Int’ l & Comp. L.Q. 723 at 724.

12 See Vicuña, F. O., “Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement,” in Schlemmer-Schulte, S. and Tung, Ko-Yung, eds., Liber Amicorum Ibrahim F.I. Shihata (The Hague: Kluwer Law International, 2001), 503 at 506.

13 Vattel, E., The Law of Nations (1758; Geneva: Slatkine reprints — Henry Dunant Institute, 1983) at 136, para. 71.

14 Mavrommatis Palestine Concessions Case (Jurisdiction) (Greece v. UK) (1924), P.C.I.J. (Ser. A) No. 2 at 12.

15 See, generally, Bennouna, supra note 8 at paras. 21–25.

16 See Dugard, J. R, Seventh Report on Diplomatic Protection, UN Doc. A/CN.4/567 (2006) at para. 9596. Since the claimant state is obliged to consult with the injured individual to determine the appropriate quantum of damages, it follows that the state “does not have complete freedom of action in the making of a claim” [Seventh Report].

17 See Vicuña, supra note 12 at 504. The free disposition of compensation by the state is also an important drawback. The recent adoption of draft Article 19(c) by the International Law Commission (ILC) seeks to limit the discretion of states in awarding compensation. ILC, supra note 4 at 9, Draft Article 19(c): “A State entitled to exercise diplomatic protection according to the present draft articles should: transfer to the injured person any compensation obtained for the injury from the responsible State subject to any reasonable deductions.”

18 Bennouna, supra note 8 at para. 19, citing Berlia, G., “Contribution à l’ étude de la nature de la protection diplomatique” (1957) Vol.3, Annuaire français de droit international 63.

19 Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) [ 1970] I.C.J. Rep. 3 at 44, para. 78 [emphasis added] [Barcelona Traction].

20 Kooijmans, P. H., “Is the Right to Diplomatic Protection a Human Right?” in Studi di Diritto Internazionale in Onore di Gaetano Arangio-Ruiz (Napoli: Editoriale Scientifica, 2003), 1975. See also Vicuña, supra note 12 at 508, qualifying the full discretionary nature of diplomatic protection as a disadvantage.

21 See International Law Association, “First Report of the Committee on Diplomatic Protection of Persons and Property” (London Conference, 2000) at 30. Diplomatic protection would only be necessary in the areas where direct standing is not available.

22 See Dugard, J. R., First Report on Diplomatic Protection, UN Doc. A/CN.4/ 506 (2000) at para. 69 [ First Report].

23 Ibid. at para. 68. See also Kooijmans, supra note 20 at 1976: “In many instances an individual, in spite of the fact that the international order bestows rights on him directly, has no access to international mechanisms where he can bring his claim against a foreign State which has failed to respect those rights.”

24 Vattel, supra note 13.

25 See, for example, the Nordic states, UN Press Release GA/L/314 ( 7 November 2001 ).

26 See generally the debates of the ILC, UN Doc. A/55/10 (2000) at supplement 10.

27 These are the words used by Warbrick, supra note 11 at 724.

28 Vattel, supra note 13 [emphasis added].

29 See Warbrick, supra note 11 at 724.

30 Brierly, J. L., The Law of Nations: An Introduction to the International Law of Peace (Oxford: Clarendon Press, 1963) at 36.

31 Ibid.

32 Ibid.

33 See Beaulac, S., The Power of Language in the Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Wesphalia (Leiden: Martinus Nijhoff, 2004) at 160.

34 Ibid.

35 Ibid.

36 Ibid. at 161.

37 Remec, P. P., The Position of the Individual in International Law According to Grotius and Vattel (The Hague: Martinus Nijhoff, 1960) at 242.

38 Ibid.

39 Ibid.

40 Ibid. at 243.

41 Vattel, supra note 13 at 9a.

42 Ibid. at 12 a.

43 Remec, supra note 37 at 244.

44 See Aceves, W. J., “Liberalism and International Legal Scholarship: The Pinochet Case and the Move toward a Universal System of Transnational Law Litigation” (2000) 41 Harv. Int’ l L.J. 129 at 131: “The prominence of the state-centric paradigm has inhibited the development of alternative models for the protection of human rights … Another consequence of the state-centric paradigm has been to emphasize the primacy of sovereignty and self-determination above all other values, including human rights.” See also Rose, T., “A Delicate Balance: Extradition, Sovereignty and Individual Rights in the United States and Canada” (2002) 27 Yale J. Int’ l L. 193 at 195.

45 Brierly, supra note 30 at 40.

46 See First Report, supra note 22 at 4.

47 Ibid. at 27.

48 The concerns raised by the states are summarized by P.H. Kooijmans, supra note 20 at 1981.

49 ILC Debates, supra note 26 at 157, para. 452: “In addition, in view of the lack of clear understanding of the meaning and the scope of ‘jus cogens,’ the article creates great difficulties.”

50 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, General List No. 126 [not yet published].

51 See First Report, supra note 22 at para. 78.

52 Warbrick, supra note 11 at 724, and 727. See also First Report, ibid., at para. 84, discussing the possible recognition of a legitimate expectation to receive diplomatic protection.

53 Ibid., at 725.

54 A. Baker (Israel), Doc. A/C.6/53/SR.15, cited in First Report, supra note 22 at para. 78.

55 First Report, supra note 22. The speakers from Australia, Switzerland, Norway, Indonesia, Uruguay, among others, shared this position.

56 See the debates of the ILC, supra note 26, para. 455.

57 Ibid. at para. 456.

58 Ibid.

59 See ILC, Draft Articles on Diplomatic Protection with Commentaries 2006, at 29–30 [forthcoming in the Yearbook of the International Law Commission, 2006, vol. II, Part. Two], <http://untreaty.un.org/ilc/texts/instruments/english/commentar-ies/9_8_2006.pdf> [Commentary].

60 Ibid. at 94.

61 ILC, Diplomatic Protection: Comments and Observations Received from Governments (addendum), UN Doc. A/CN.4/561/Add.2 (2006) at 2–3.

62 Ibid.

63 Ibid.

64 Ibid., Italy’ s proposal of draft Article 2(2).

65 Ibid., Italy’ s proposal of draft Article 2(3).

66 For other decisions discussing, inter alia, diplomatic protection of corporations, see Vermeer-Kunzli, A., “Restricting Discretion: Judicial Review of Diplomatic Protection” (2006) 75(2) Nordic J. Int’ l L. 279.

67 Abbasi and Another v. Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for the Home Department, [2002] E.W.C.A. Civ. 1598 [Abbasi].

68 Ibid. at para. 1.

69 The appeal of this decision was pending when Abbasi was rendered. On 28 June 2004, the United States Supreme Court reversed the District Court decision and the Appeal Court decision, holding “that §2241 [of the general federal habeas corpus statute] confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.” See Rasul et al. v. George Walker Bush et al (03–334) 542 U.S. 466 (2004) at 17. The Congress responded by adopting the Detainee Treatment Act of 2005, Pub. L. No. 109–148, 119 Stat. 2680 (2005), which provided that no court had jurisdiction over Guantanamo Bay detainees. In June 2006, the Supreme Court issued the decision in Hamdam v. Rumsfeld, holding that federal courts had jurisdiction over habeas corpus cases pending at the time of the adoption of the Detainee Treatment Act. The Congress then responded with the Military Commissions Act of 2006, Pub. L. No. 109–366, 120 Stat. 2600 (2006), specifying that the act applied to “all cases, without exception, pending on or after the date of the enactment.” On 20 February 2007, the United States Court of Appeals (Columbia) issued the most recent decision on this topic in Boumediene v. Bush (055062), holding that the Military Commissions Act was not an unconstitutional suspension of the writ of habeas corpus.

70 Abbasi, supra note 67 at para. 1.

71 Ibid. at para. 66.

72 Ibid. at para. 67.

73 Barcelona Traction, supra note 19.

74 Abbasi, supra note 67 at para. 69.

75 Human Rights Act 1998, (U.K.), 1998, c. 42.

76 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 [ECHR].

77 Abbasi, supra note 67 at para. 80.

78 Al-Adsani v. United Kingdom, no. 35763/97 (21 November 2001) E.C.H.R., [2002] 34 E.H.R.R. 273 [Al-Adsani].

79 Bankovic and Others v. Belgium and Others, no. 52207/99 (12 December 2001) E.C.H.R., 31 I.L.M. 517 (2002) [Bankovic].

80 Soering, supra note 3; the ruling is discussed later in this article in the section on the extraterritorial application of the ECHR, supra note 76.

81 Abbasi, supra note 67 at paras. 77 and 79.

82 Ibid. at para. 80.

83 Ibid. at para. 84. In the Netherlands, the notion of “reasonable expectation” is embodied in the case HMHK v. The Netherlands, 94 I.L.R. 342 at 345, in which the Court of Appeal of The Hague held that under Dutch law the state can in general be required to provide assistance through its diplomatic representatives to Dutch nationals abroad if they are detained in custody. See further Kooijmans, supra note 20 at 1983.

84 Abbasi, supra note 67 at para. 92.

85 Ibid. at para. 99.

86 Ibid.

87 Ibid. at para. 104.

88 Ibid. at para. 107 (1).

89 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.

90 Department ofForeign Affairs and International Trade Act, R.S.C. 1985, c. E-22 [DFAITAct].

91 Khadr v. Canada (Minister of Foreign Affairs), 2004 F.C. 1145 (Docket T-686-04) [Khadr].

92 United States of America v. Burns, [2001] 1 S.C.R. 283 [Burns].

93 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 [Suresh].

94 Khadr, supra note 91 at paras. 15–18.

95 Suresh, supra note 93 at para. 54.

96 Ibid.

97 Section 7 has been interpreted as restricting the ability of the state to deprive a person of these rights rather than to positively ensure their protection. This principle is set in the decision in Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 at para. 81.

98 The same conclusion was reached in a later application for judicial review, in which von Finckenstein J. ruled that there was no sufficient connection between the acts of the Canadian officials and the infringement of rights in order to trigger the Charter application. Khadr v. Canada (Minister of Justice), 2006 FC 509. But in May 2007, the Federal Court of Appeal overruled this latter decision, and held that the Charter did apply to the acts of the Canadian officials abroad in this case, see Khadr v. Canada (Minister of Foreign Affairs), 2007 FCA 182. On 7 June 2007, the Supreme Court of Canada rendered a decision in R v. Hape, (2007) SCC 26 [Hape], in which LeBel J, writing for the majority, held that the extraterritorial application of the Charter was impossible (at para. 85). Note the concurring reasons of Binnie J., at para. 186–91 . It is unclear how this decision will influence the Federal Court of Appeal’ s finding of the extraterritorial application of the Charter.

99 Publication of Foreign Affairs and International Trade Canada, <http://www.voyage.gc.ca/main/pubs/imprisoned_abroad-en.asp>.

100 Khadr, supra note 91 at para. 22 (pervon Finckenstein, F.C.J.).

101 International Covenant on Civil and Political Rights, 19 December 1966, 6 I.L.M. 368 (1967) [ICCPR]; and Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25 (1989), 28 I.L.M. 1448.

102 Vienna Convention on Consular Relations, U.N.T.S. nos. 8638–40, vol. 596, pp. 262–512 [VCCR].

103 Khadr, supra note 91 at paras. 26–28.

104 Kaunda v. President of the Republic of South Africa (2005) 4 South African Law Reports 235 (CC), 44 I.L.M. 173 (2005) [Kaunda]. Page numbers refer to the Digital Collection, Constitutional Court Cases and Judgments, Doc. CCT23/04.

105 Ibid. at 14.

106 Ibid. at 16.

107 Ibid. at 18.

108 Chaskalson J.: “The Bill of Rights binds the South African government, but does not bind other governments. As the Canadian Supreme Court has said with regard to the application of its own constitution in respect of appeals by Canadian nationals to be protected against the application of inconsistent foreign law, ’ individuals who choose to leave Canada leave behind Canadian law and procedures’ .” (ibid. at 26–27). It may be noted that the authorities cited in support of this contention have been reviewed by the Supreme Court of Canada in Burns, supra note 92. More particularly, the Supreme Court of Canada implicitly rejected the argument that “individuals who leave Canada leave behind Canadian law” as one of the factors favouring extradition without assurances, when it ruled that assurances that death penalty will not be imposed ought always to be asked for. However, as noted earlier, the Supreme Court of Canada seems to have recently returned to the original argument that individuals who choose to leave Canada should expect to be treated according to the laws of the foreign country. Hape, supra note 98 at para. 99.

109 Ibid. at 19, citing the ruling in The Case of the S.S. Lotus (France v. Turkey) (1927), P.C.I.J. (Ser. A) No. 10.

110 Ibid. at 22.

111 Ibid. at 29–30.

112 Ibid. at 32.

113 Ibid. at 35.

114 Ibid.

115 Ibid. at 97.

116 Ibid. at 112–13.

117 Ibid. at 112. O’ Reagan J. acknowledges that in the diplomatic protection process, even if the state is formally defending his own interests, the primary beneficiaries of diplomatic protection are the individuals, not the state: “Given that it is widely accepted that the right to diplomatic protection does serve the interests of individuals, it seems appropriate to consider the provision of diplomatic protection by the state to fall within the ’ privileges and benefits’ of citizenship as contemplated by section 3.”

118 Ibid. at 116.

119 Ibid.

120 Ibid. at 120.

121 Ibid. at 132.

122 Ibid. at 79.

123 Ibid. at 85. See Erasmus and Davidson, supra note 2 at 127: “Diplomatic protection is a benefit to which citizens are ‘ equally’ entitled, implying that they may not be denied the benefit arbitrarily and without a good cause.”

124 Ibid. at 88.

125 Ibid. at 94. According to Ngcobo J., the fundamental flaw of the applicant’ s case was the premise that the South African government has a constitutional duty to require Zimbabwe and Equatorial Guinea to comply with the rights contained in the South African Constitution.

126 Rudolf Hess v. Federal Republic of Germany, Case No. 2 BvR 419/80, 90 I.L.R. 387 (1980).

127 Ibid. at 387.

128 Ibid. at 388.

129 Ibid. at 395.

130 Ibid. at 396.

131 Ibid. at 398.

132 See text accompanying note 112 in this article.

133 There is a trend in focusing on the role of domestic institutions in enforcing international law and the recognition of the persuasive effect of international law in the interpretation of domestic instruments. See generally Knop, K., “Here and There: International Law in Domestic Courts” (2000) 32 N.Y.U. J. Int’ l L. & Pol. 501 ; Aceves, supra note 44; Fitzpatrick, J., The Role of Domestic Courts in Enforcing International Human Rights Law, in Hannum, Hurst, ed., Guide to International Human Rights Practice, 3rd edition (New York: Transnational Publishers, 1999).

134 This was mostly discussed in Abbasi, supra note 67.

135 This was discussed in Kaunda, supra note 104; Abbasi, supra note 67; and Khadr, supra notes 91 and 98.

136 For a discussion of the territorial application of the American Declaration on the Rights and Duties of Man in the inter-American system, see C.M. Cerna, “Out of Bounds? The Approach of the Inter-American System for the Promotion and Protection of Human Rights to the Extraterritorial Application of Human Rights Law,” NYU School of Law, Center for Human Rights and Global Justice Working Paper, no. 5, 2006.

137 For an excellent overview of the issue of extraterritorial application of human rights conventions, see Cerone, J., “Out of Bounds? Considering the Reach of International Law,” NYU School of Law, Center for Human Rights and Global Justice Working Paper, no. 5, 2006. See also specifically on the European case law, Loucaides, L.Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case” (2006) 4 E.H.R. L.R. 391 ; Wilde, R., “The ‘Legal Space’ or ‘Espace Juridique’ of the European Convention on Rights: Is It Relevant to Extraterritorial State Action?” (2005) 2 E.H.R. L.R. 115 ; and Abdel-Monem, T., “How Far Does the Lawless Areas of Europe Extend? Extraterritorial Application of the European Convention on Human Rights” (2005) 14 J. Transnat’ l L. & Pol. 159.

138 Van den Wyngaert, C., The Political Offence Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order (Deventer: Kluwer Law International, 1980) at 90.

139 See First Report, supra note 22 at 33.

140 Bankovic, supra note 79 at para. 59.

141 Ibid. at para. 59.

142 Ibid. at para. 60.

143 See Flauss, J.-F., “Le Contentieux des Décisions de Refus d’ Exercice de la Protection Diplomatique” (2005) 109 R.G.D.I.P. 407 at 409.

144 Bankovic, supra note 79 at para. 75. The European Court of Human Rights (ECtHR) clearly dismissed the argument that “anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State for the purpose of Article 1 of the Convention.”

145 Flauss, supra note 143 at 410.

146 Cerone, supra note 137 at 32.

147 Ahani v. Canada (Minister of Citizenship and Immigration), [2002] O.J. No. 81 [Ahani].

148 “Introduction,” in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol. 2 (New York: United Nations, 1990) at 1 (cited in Ahani, supra note 147 at para. 38).

149 For a general overview of the scope of application of the ECHR, see Cassesse, A., Clapham, A., and Weiler, J., eds., Human Rights and theEuropean Community (Baden-Baden: Nomos, 1991); Neuwahl, N. and Rosas, R., eds., The European Union and Human Rights (The Hague: Martinus Nijhoff Publishers, 1995); and Alston, P., ed., The EU and Human Rights (New York: Oxford University Press, 1999).

150 Ovey, C. and White, R. C. A., Jacobs, & White, , The European Convention on Human Rights, 3rd edition (Oxford: Oxford University Press, 2002), chapter 4 at 47.

151 McGoldrick, D., “Extraterritorial Application of the International Covenant on Civil and Political Rights,” in Coosmans, F. and Kamminga, M. T., eds., Extraterritorial Application of Human Rights Treaties (Antwerp-Oxford: Intersentia, 2004), 42 at 52. For a different classification, see O’Boyle, M., “The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on ’ Life after Bankovic,’” also in Coosmans, F. and Kamminga, M. T., eds., 125 at 127.

152 Soering, supra note 3 at para. 88.

153 Ibid. at para. 86.

154 Ibid. at para. 91 .

155 O’ Boyle, M., “Extradition and Expulsion under the ECHR: Reflections on the Soering Case,” in O’ Reilley, J., ed., Human Rights and Constitutional Law, Essays in Honor of Brian Walsh (Dublin: Round Hall Press, 1992) at 97.

156 Soering, supra note 3 at para. 91.

157 Ocalan v. Turkey, no. 46221/99 (12 March 2003), E.C.H.R. [Ocalan].

158 Ibid. at para. 195.

159 Protocol No. 6 to the European Convention Concerning the Abolition of the Death Penalty, ETS No. 114 (opened for signature 28 April 1983, entered into force 1 March 1985).

160 Ocalan, supra note 157 at para. 196.

161 Ibid. at para. 198.

162 Ibid.

163 In Chahal v. United Kingdom, no. 22414/93 (15 November 1996) E.C.H.R., the ECtHR held that the United Kingdom could not deport an Indian Sikh to India because of the fear that he would be subjected to torture given his separatist activities back there. In HLR v. France, no. 24573/94 (29 April 1997), the court considered whether France could lawfully deport to Colombia a convicted cocaine trafficker who alleged that he would be exposed to vengeance by the drug traffickers whom he denounced in Colombia. The court held that it was possible that Article 3 be given extraterritorial effect when the risk of ill treatment was at the hands of private parties but that such was not the present case. Six dissenting judges thought that the risk was serious and that the claimant should not be deported. In D. v. UK, no. 30240/96 (2 May 1997) E.C.H.T., the court considered the proposed deportation of the applicant to St. Kitts, where he would not be able to receive proper medical treatment for his AIDS condition. The court held that his deportation would constitute a violation of Article 3 amounting to inhuman treatment. In Ahmed v. Austria, the court held that the return to Somalia of the applicant while a civil war is raging would expose the applicant to ill treatment, which would violate Article 3. Finally, in Cruz Varas v. Sweden, judgment of 20 March 1991, Series A, No. 201, the court concluded that the expulsion to Chile of a family of Chilean nationality did not violate Article 3. In light of the political changes in Chile, the court did not feel that there was a real risk that Cruz Varas would be tortured.

164 Mamatkulov & Askarov v. Turkey, no. 46827/99 and 46951/99 (5 February 2005)E.C.H.R.

165 McGoldrick, supra note 151 at 53.

166 Lawson, R., “Life after Bankovic,” in Coosmans and Kamminga, eds., supra note 151, 83 at 97: “But the decision to extradite is normally taken in the territory of the extraditing state, at a moment when the person concerned is clearly within that state’ s jurisdiction … Accordingly, Soering does not provide authority for the statement that the concept of ‘jurisdiction’ is not restricted to the national territory of the contracting parties.”

167 Department ofJustice Canada, Minister of Justice Orders Surrender of Dennis Hurley to Mexico, Press Release (27 February 1996), <http://Canada.justice.gc.ca/en/ news/nr/ 1996/hurley.html>.

168 McGoldrick, supra note 151 at 53. According to D. McGoldrick, a violation of an individual’ s right can take place even when the individual is not at the relevant time present on the territory of the state party to the ICCPR (citing Mgenbe v. Zaire, Human Rights Committee, UN Doc. A/38/40 (25 March 1983) at 134).

169 Bankovic, supra note 79 at para. 53.

170 Ibid. at para. 64.

171 Ibid. at para 68. This is at odds with the previous statement of the European Court in Al-Adsani, supra note 78, in which it held that “[i]n the above-mentioned Soeringcase the Court recognized that Article 3 has some, limited extraterritorial application, to the extent that the decision by a Contracting State to expel an individual might engage the responsibility of that State under the Convention.”

172 See note 140 in this article.

173 Bankovic, supra note 79 at para. 71.

174 Issa and Others v. Turkey, no. 31821/96 (30 May 2000) E.C.H.R.

175 Ibid. at para. 74.

176 Ibid., at para. 71 .

177 Ibid. This opening in Issa induced the House of Lords in Al-Skeini to conclude that the ECtHR has not spoken “with one voice” regarding the interpretation of Article 1, infra note 182 at para. 67.

178 In Loizidou v. Turkey, Preliminary Objections (23 March 1995) E.C.H.R., Series A, vol. 310, para. 62, the ECtHR held that the obligation to secure the rights and freedoms set out in the convention derives from the exercise of “effective control” over an area outside the national territory, whether exercised directly, through armed forces, or through a subordinate local administration. In Ocalan, supra note 158 at para. 93, the ECtHR held that Ocalan, arrested in Kenya by Turkish security forces, was under the jurisdiction of Turkey for the purposes of Article 1 of the convention, “in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey.”

179 Hussein v. Albania, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine And the United Kingdom, no. 23276/04 (14 March 2006), E.C.H.R.

180 Ibid.

181 Al Skeini v. Secretary of State for Defence, [2007] U.K.H.L. 26 [Al-Skeini].

182 Ibid. at para. 83.

183 Ibid. at para. 82.

184 Ibid. at para. 61.

185 Ibid. at para. 64.

186 Ibid. at para. 129.

187 See text later in this article under the heading “Extraterritoriality and Diplomatic Protection: A New Approach.”

188 State Immunity Act 1978, (U.K.), 1978, c. 33.

189 Al-Adsani, supra note 78 at para. 39.

190 Ibid.

191 Ibid. at para. 50.

192 Ibid. On the implications of this statement, see Warbrick, supra note 11 at 72332, Warbrick underlines the fact that (1 ) Al-Adsani was a dual national and the traditional rules of diplomatic protection oppose the exercise of diplomatic protection by a state of nationality against another state of nationality and (2) that notwithstanding this statement, the United Kingdom government does not believe that diplomatic protection is “available to the individual.”

193 See, on this point, Flauss, J.-F., “Protection Diplomatique et Protection Internationale des Droits de l’ Homme” (2003) Revue Suisse de Droit International et Européen 1 at 27: “Bien que la Cour n’ ait pas souscrit explicitement à cet argument, il ne serait pas malgré tout totalement incongru d’ en prendre acte dans une perspective constructive; en d’ autres termes, d’ admettre que, dans un tel cas de figure, le droit de la Convention européenne devrait être mis au service de la résorption de la discrétionnalité de l’ exercice de la protection diplomatique, à tout le moins lorsque le ressortissant national a été victime de la violation d’ une norme de droit international impératif.”

194 Abbasi, supra note 67 at para. 49.

195 Ibid. at para. 50.

196 Ibid. at para. 71.

197 Ibid. at para. 77.

198 Bertrand Russell Peace Foundation Ltd v. the United Kingdom, no. 7597/76 (2 May 1978), E.C.H.R., 14 D.R. 117 (1979) [Bertrand Russell].

199 For a general view on the scope of application of the treaty, see Joseph, S. et al., The International Covenant on Civil and Political Rights: Cases, Materials, and Com-mentary (Oxford: Oxford University Press, 2000).

200 See, for example, Dennis, M., “Applying Human Rights Law and Humanitarian Law in the Extraterritorial War against Terrorism: Too Little Too Much, or Just Right? Application of Human Rights Treaties Extraterritorially to Detention of Combatants and Security Internees: Fuzzy Thinking All Around?” (2006) 12 I.L.S.A. J. Int’ l & Comp. L. 459, arguing for a strict reading of the jurisdiction clause.

201 See Human Rights Committee, General Comment 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant,” UN Doc. CCPR/C/21/Rev.1/Add.13 (2004) at para. 12.

202 In Kindler v. Canada, Communication no. 470/1991 (1994) 98 I.L.R. 426, the Human Rights Committee (HRC) considered the deportation of an accused from Canada to the United States where he was under death sentence and held that the death row phenomenon in this case did not amount to a degrading or inhuman punishment and that Canada did not violate its obligations under the ICCPR, supra note 101 (at 446–47).

203 In Ng v. Canada, Communication no. 469/1991 ( 1994) 98 I.L.R. 479, the HRC held that Canada did violate its obligations under section 7 of the ICCPR, supra note 101, in that execution by gas asphyxiation causes prolonged suffering and does not constitute “the least possible physical and mental suffering” (at 503).

204 Ibid. (individual opinion of Ms. Christine Chanet (dissenting)) at 519.

205 Judge v. Canada, Communication No. 829/1998 (5 August 2002) [Judge].

206 Ibid. at para. 10.3.

207 See Human Rights Committee, General Comment 31, supra note 201 at para. 10.

208 Ibid.

209 Lopez Burgos v. Uruguay, Communication no. R.12/52 (6 June 1979), UN Doc. Supp. no. 40 (A/36/40) (1981) at 176 [Lopez Burgos].

210 Ibid. Yet this comment was made in the context of Article 1 of the Optional Protocol to the ICCPR, supra note 101.

211 In contrast, in its concluding observations on Israel, the Human Rights Committee limited the extraterritorial application of the ICCPR, supra note 101, to the occupied territories and to “those areas of southern Lebanon and West Bekaa where Israel exercises effective control,” Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, UN Doc. CCPR/C/79/ Add.93 ( 18 August 1998) at para. 10.

212 See Scheinin, M., “Extraterritorial Effect of the International Covenant on Civil and Political Rights,” in Coosmans and Kamminga, eds., supra note 151, 73 at 76: [the test of effective control over territory] was not implied by the [Human Rights] Committee’s concluding observations on Israel or Iran, or in its Uruguayan cases.”

213 Ibid.

214 See text accompanying note 186 in this article.

215 Dennis, supra note 200.

216 Tomushat, C., Human Rights: Between Idealism and Realism (Oxford: Oxford University Press, 2003) at 108.

217 Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory, 43 I.L.M. 1009 (2004).

218 Ibid. at para. 111.

219 Democratic Republic of Congo (DRC) v. Uganda, International Court of Justice, General List no. 116, 19 December 2005, >http://www.icj-cij.org/docket/ index.php?p 1 =3 & p2=1&code=co&case= 116&k=51>.

220 Cerone, supra note 137 at 8.

221 UN Doc.A/ 2929 (1955), chapter V, para. 4.

222 See Human Rights Committee, General Comment 31, supra note 201 at para. 10.

223 Lopez Burgos, supra note 209 at 184.

224 Meron, T., “Agora: The 1994 U.S. Action in Haiti, Extraterritoriality of Human Rights Treaties” (1995) 89 Am. J. Int’ l L. 78.

225 See McGoldrick, supra note 151 at 52. See also Human Rights Committee, General Comment 31, supra note 201 at para. 12.

226 Human Rights Committee, General Comment 31, supra note 201 at para. 6–7.

227 See Cerone, supra note 137 at 22.

228 Ibid. at 23.

229 Abbasi, supra note 67 at para. 71.

230 McGoldrick, supra note 151 at 46.

231 See text accompanying note 186.

232 Scheinin, supra note 212 at 75.

233 Ibid. at 76.

234 Ibid. at 80.

235 Cerone, supra note 137 at 32.

236 Lawson, supra note 166 at 104.

237 Ibid.

238 Soering, supra note 3 at para. 91.

239 Judge, supra note 205 at para. 10.6.

240 Diplomatic and Consular Protection of Union Citizens in Third Countries, Green Paper, Doc. COM/2006/0712 final (2006), <http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:52006DC0712:EN:NOT>.

241 Treaty Establishing the European Communities and Certain Related Acts, (1997) 37 I.L.M. 56, and now known as the Treaty Establishing the European Community. Article 20 states: “Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.”

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Diplomatic Protection: Taking Human Rights Extraterritorially

  • Noura Karazivan

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