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I. Diplomatic Representations and Diplomatic Protection

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick  and
Dominic McGoldrick
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Extract

The European Court of Human Rights has decided in the last three years five cases dealing with state or international immunities.1 Although the facts differed, the arguments of the applicants were much the same. They contended that allowing a foreign State or an international organisation to claim immunity in a civil action in proceedings in the defendant State violated the applicants' rights to access to a court for the determination of a civil right.2 The European Court accepted the claims in principle but concluded in each case that the limitation imposed on the right of access was for a legitimate reason (the protection of State or international immunities, a condition for effective co-operation between States or with international organisations) and was proportionate to this aim, because in each case, the grant of immunity was required by international law and that in each case there was the possibility of the applicant using another procedure to try to assert his rights, action in the courts of the foreign State or under the special staff regime of the international organisation.

Type
Current Developments Public International Law
Information
International & Comparative Law Quarterly , Volume 51 , Issue 3 , July 2002 , pp. 723 - 733
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 Waite and Kennedy v Germany ECt HR (1999–1); Beer and Regan v Germany (1999) (international immunity); Al Adsani v UK (2001); Fogarty v UK (2001); McElhinney v Ireland (2001) (state immunity).

2 On the right of access to a court, see Clayton, R and Tomlinson, H, The Law of Human Rights (Oxford: Oxford University Press, 2000), 637–43.Google Scholar

3 European Convention on State Immunity, 1972, ETS No 74.

4 Al Adsani, above n 1, para 50.

5 Although it is not mentioned in the judgment of the European Court, it is understood that there was a criminal prosecution in Kuwait of a person alleged to be responsible for the ill treatment of Al Adsani.

6 See Protection of Nationals Abroad, B: Diplomatic Action and Claims Practice, (1988) 37 ICLQ 1002, 1006–8.Google Scholar

7 See GA/L/3159 (30 Oct 2000) and GA/L/3160 (31 Oct 2000).

8 For the most recent example, see the representations made on behalf of Tracy Housel. In this case, the fifteen governments of the European Union made a further protest. The Prime Minister's spokesman said, ‘there was a limit to what we can do ultimately’. Housel was executed. See <http://news.bbc.co.uk/hi/world/americas/newsid_l867000/1867916.stm>.

9 United Kingdom Materials on International Law 1999, in (1999) LXX BYIL 527 (emphasis in original).

10 Ibid, Rule III.

11 UN Press Release GA/L/3194 (7 Nov 2001).

12 I Brownlie, Principles of Public International Law, 5th edn (Oxford: Oxford University Press, 1998), who properly separates his treatment into three chapters, ‘The Responsibility of States’, ‘The Admissibility of State Claims’, and ‘Injury to the Persons and Property of Aliens on State Territory’.

13 United States v Mexico (Neer) IV UNRIAA 60, 61–2.

14 Lillich, R, The Human Rights of Aliens in Contemporary International Law (Manchester: Manchester University Press, 1984), 51–61.Google Scholar

15 The advice is available on the FCO Website, <http://www.fco.gov.uk/travel>.

16 <http://www.prisonersabroad.org.uk>.

17 Above, n 9, 526–8.

18 Above, n 9, 528.

19 Ibid, 529.

20 No 788/60, (1961) 4 YbECHR 112.

21 Denmark v Turkey ECtHR (2000) (friendly settlement), text in (2000) 21 HRLJ 58.

22 Soering v UK ECtHR A/161 (1989).

23 Selmouni v France ECtHR (1999–V).

24 A/25 ECtHR (1979).

25 JR Dugard, First Report on Diplomatic Protection, Fifty-second Session of the International Law Commission, A/CN 4/506, paras 19–32 (Report).

26 Report, para 17.

27 Report, para 32.

28 Report, para 73.

29 Report, para 87.

30 ILC Report on the work of its fifty-third session, A/56/10, para 456.

31 Report, para 88.

32 Articles on State Responsibility, 41, 48, and 54. For diplomatic protection, see the summary of the debate in the ILC by the Rapporteur, ILC Report, above n 30, paras 450–5.

33 International Law Association, Report of the Sixty-Ninth Conference (2000), Interim Report on ‘The Changing Law of nationality of Claims’ by Professor Francisco Orrego Vicuna, 631, 633.

34 See Jasinskij v Lithuania No 38985/97, European Court of Human Rights (admissibility), THE LAW, para 2.

35 Germany v United States (LaGrand) ICJ (2001).

36 Ibid, para 77.

37 Geek, WK, ‘Diplomatic Protection’, in Bernhardt, R (ed), Encyclopaedia of Public International Law, Volume 1 (Amsterdam, London: North Holland, 1992), 1045, 1051–2.Google Scholar

38 Erasmus, G and Davidson, L, ‘Do South Africans have a Right to Diplomatic Protection?’ (2001) 25 SAYIL 113.Google Scholar

39 Ibid, 119.

40 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

41 R v Secretary of State for Foreign & Commonwealth Affairs exparte Pirbhai YL9 SJ 756.

42 See esp, R v Secretary of State for Foreign & Commonwealth Affairs, ex parte Butt CA (1999) (unreported) and R v Secretary of State for the Home Department exparte Kamalposhany (2001) (unreported), per Sir Richard Tucker, ‘there is no duty upon the Secretary of State to ensure that nations comply with their human rights obligations… There may be cases where the United Kingdom government has, for example by diplomatic means, chosen to seek to persuade another state to take a certain course of action in its treatment of British nationals; but there is no duty to do so’, para 19.

43 The Independent, 16 Mar 2002, 2.