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This chapter examines the influence of human rights law on the law of diplomatic protection. The remedial law of human rights protection may influence the law of diplomatic protection in the area of the exhaustion of local remedies. There have been developments in the application of the rule of domestic remedies to human rights protection, albeit under conventional law, which could affect the application of the rule in the diplomatic protection of aliens.
Keywords: human rights law, diplomatic protection, remedial law, domestic remedies
The remedial law of human rights protection may have an influence on the law of diplomatic protection in certain areas, particularly that of the exhaustion of local remedies. Parallels from the law of human rights protection may apply to diplomatic protection. There have been developments in the application of the rule of domestic remedies to human rights protection, albeit under conventional law, which could affect the application of the rule in the diplomatic protection of aliens. This feature is discussed here, because it reveals a novel aspect of the rule of local remedies inextricably involved with the impact of human rights law and hitherto not properly or fully addressed.
It must be recognized that the so-called domestic remedies rule is not an invention of international human rights law. Not only do the relevant instruments generally refer to ‘general international law’ (which obviously means the law of diplomatic protection in particular), but (i) human rights organs, particularly those operating judicially or under judicial control, invoke general international law; (ii) there is no substantial evidence that, in the event that there is a customary law applying the rule to human rights law as such, the rule applicable would not be based on the rule in diplomatic protection as is the case with the conventional law and that applied by human rights organs mentioned above. Consequently, it would be foolhardy to postulate differences as a basic assumption, rather than to recognize that human rights law starts with an awareness of the relevance of the principles of the general international law of diplomatic protection 1 and proceeds to use them, while at the same time implementing the law with refinements (and even, perhaps, differences) where such are called for by the particular circumstances of human rights protection. This pragmatic approach appears to be the one taken by all human rights organs virtually without exception. They do not, as the evidence shows, take the view that the rule as applied to diplomatic protection is ‘rigid’, as opposed to ‘flexible’, as such, or that the rule as applied to human rights protection is original and has an existence of its own or that (p. 330) they must ignore the principles found in the law of diplomatic protection. 2 It may be possible to identify a narrowing of scope or broadening of limitations, for example, especially in applications to particular situations when legitimate comparisons are possible, but that is not to say that basic approaches, whether of principle or conceptual content, or of contextual applications, are fundamentally and always different, or can never be similar or comparable, or that comparison and analogies are irrelevant. 3
It must be emphasized that there is a difference between changing or not recognizing a principle, in this case as applied to diplomatic protection, and giving the principle development (ie of conceptual content) which may be different. When the latter takes place, the principle remains, though the conceptual development may be narrower. Indeed, conceptual concretizations cannot be characterized as narrower or different, unless identical or, at least, similar contextual situations are being considered. When a situation has not been encountered in the law of diplomatic protection but has been in the law of human rights protection, it is not appropriate to say that there has been a narrower development or application of the principle, or, still less, that the principle is different or has been changed. What is taking place is a development in application. That having been said, where principles or their conceptual development or contextual application are different from those recognized in the law of diplomatic protection, this must be recognized.
The above distinctions and realities are noted because there are what are properly termed specific contextual applications as well as what are properly characterized as differences of principle, and differences of conceptual content, in the implementation of the rule of domestic remedies by human rights organs. It will be apparent, though, that the incidence of differences in principle is much less than the incidence of conceptual development or contextual applications, though sometimes these phenomena are confused or, at least, not kept distinct by legal commentators. 4 Furthermore, while differences or similarities in broad principle are easy to identify, it is often not easy to distinguish conceptual development (p. 331) from contextual application, but making such a distinction is the appropriate manner in which to approach the matter. 5
It is evident that in principle human rights organs have implicitly accepted that the starting point is the law of diplomatic protection. This is evidenced by their recognition of such basic principles, broad and conceptually indeterminate in a sense though they may be, such as, for example, those relating to ordinary and extraordinary remedies, to full exhaustion, to unavailability, inaccessibility and inefficacy of remedies, to undue delay, to repetition of injury, and to waiver and estoppel.
What has happened in the law of human rights protection in most areas is that (i) general concepts included in principles have already been filled out and given narrower definition (eg full exhaustion, use of ordinary or extraordinary remedies, including alternative remedies, and inaccessibility); and (ii) there has been application of principle and general concepts included in them to situations which have not been encountered at all in the law of diplomatic protection (eg inaccessibility).
It is unnecessary here to examine in detail where the law of human rights protection differs from or is similar to the law of diplomatic protection with regard to the rule of local or domestic remedies. Suffice it to say that there are considerable differences between the approach of human rights bodies and the law of diplomatic protection to the conceptual content of effectiveness of a remedy.
However, it is equally important to recognize that just as there are clear similarities of principle in other areas, eg availability of remedies and undue delay, there are also (i) areas, such as inaccessibility, in which there has been further conceptual development in the experience of human rights bodies; and (ii) areas, such as extraordinary remedies and alternative remedies, in which there have been new and contextual applications to situations which have not been encountered in the law of diplomatic protection. In both of these categories, the proper and useful approach is to regard the approach of human rights bodies as a possible source for the development of the law relating to local remedies in diplomatic protection. Thus, for instance, the application in human rights law of the concept of inaccessibility to the situation where in a given social context the legal profession is virtually coerced into not advising an individual is a development which can inform the law of diplomatic protection. That development also highlights to some extent the possibility that inaccessibility may result not only from (p. 332) conduct or situations attributable to the respondent State but also from societal phenomena.
In the same way as for conceptual development, the application of principles to new fact situations could inform the law of diplomatic protection. The approach taken by human rights bodies to extraordinary and alternative remedies is a good example of this. It is not being suggested that there should or can be a wholesale and indiscriminate importation to the law of diplomatic protection of developments in these senses in the law of human rights protection. What is necessary is that a close look be taken at the developments referred to above, in the context of diplomatic protection, before they are accepted as being relevant or rejected as being irrelevant.
That there are differences between the law of human rights protection and the law of diplomatic protection in certain areas of the application of the rule of local remedies must also be recognized. It is not suggested that it is always desirable that the gap be bridged. Nevertheless, the lessons learned in one area may be useful in the other area. A good example is the conceptual development of inaccessibility to include the indigence of the individual who is the victim as a factor to be considered. In some early cases in the law of diplomatic protection, impecuniosity or indigence of the alien was regarded as a factor which was not relevant to the issue of inaccessibility. It may be possible that the irrelevance of indigence in these cases depended on the circumstances of each case. A similar treatment of indigence is to be found in the jurisprudence under the European Convention and in the practice of the UN Human Rights Committee. However, the advisory opinion of the IACHR has now indicated that indigence is a factor which in principle is relevant (to inaccessibility) for the purposes of the rule of domestic remedies. This precedent is clearly one that could inform the law of diplomatic protection which was apparently in principle interpreted differently. Here is an instance where current apparent differences could result in a closer look being taken at the conceptual content of principle even to the extent of changing it or its approach. 6
The important point is that, though it is possible that there be differences in the content or application of the rule in the two areas, which must exist because of the possible differences that there may be in the perception of the rule as it is relevant to the two areas, there is no need to regard the development of the rule in the two areas as incurably separate. Nor is there a justification for such an approach in the light of the bases of the rule as applied in the two areas. While (p. 333) valid differences must be accepted, there is every reason why the experience in one area could inform the development of the law in the other. 7
That having been said, it is also clear that the development of conceptual content in like principles and the contextual application of such principles are subject to the influence of several different factors which become relevant on account of the diverse phenomena in modern international society. These include factors such as the existence of tyrannical dictatorships opposed to truly just democracies or other polities, of endemic judicial inefficiency and corruption even in democracies or polities of whatever kind, and of a distinction made in conventional human rights law between non-derogable and derogable rights, though there are no absolute and invariable conclusions to be reached because of such differences. That this is the position in the context of international human rights protection is easily conceded. 8 On the other hand, there is no reason why similar factors which may exist could not have an impact on the rule of local remedies in diplomatic protection.
It has been pointed out recently by the IAComHR that the Inter-American system (under the American Convention particularly) of providing an ‘international remedy’ is subsidiary compared to the primary role of national courts. 9 The Commission made clear that, where petitioners can litigate before domestic courts and do have access to justice, they must do so in compliance with the rule of domestic remedies. This is an unequivocal admission that the domestic remedies rule has a significance in the context of human rights protection just as it does in the law of diplomatic protection. There is no implication that domestic remedies may be side-stepped at the drop of a coin or that the object of the human rights protection system is to get the matter at any cost to an international forum, simply because international human rights dispute settlement procedures are available. This view of the international remedy may be applicable in diplomatic protection as well. The point being made is that the general principles are still valid that the rule of domestic remedies applicable in human rights law derives from the rule of local remedies of the law of diplomatic protection and bears a significant resemblance to the latter, and that the development of the rule in the two areas are interconnected and need not necessarily be different. 10
Notes:
(1) The local remedies rule as applied to diplomatic protection is examined in Chapter 11 above.
(2) Cançado Trindade disagrees in effect with this approach, believing virtually that the rule as applied to human rights protection has a total life of its own. This is the burden of his argument in ‘Book Review’, 86 AJIL (1992) 626, passim In any case, ‘flexibility’ and ‘rigidity’ are relative terms—relative to the point of view being used. What is flexibility from the respondent State's angle is rigidity from the individual's point of view and vice versa. This is so, even though, as has become apparent, some human rights organs and bodies do use this terminology, obviously with a bias against States and in favour of individuals. It makes sense and accords more with reality to talk, for instance, in terms of expansion or narrowing of the scope of, and narrowing or expansion of the limitations on, the rule.
(3) On the specific application of the rule in conventional human rights protection see C F Amerasinghe, Local Remedies in International Law (2004), Chapter 13.
(4) Cançado Trindade (note 2 above) 626, does not keep these distinctions separate. The working of conceptual development is explained in greater detail by me in my treatise, Principles of the Institutional Law of International Organizations (2005), Chapter 6.
(5) Cançado Trindade is obsessed with ‘flexibility’ and ‘adjustment’ at the expense of recognizing new applications of the rule: see (note 2 above) 631, and Cançado Trindade, ‘The Inter-American Human Rights System at the Dawn of a New Century’, in Harris and Livingstone (eds), The Inter-American System of Human Rights (1998) 401. A more helpful and objective, and less dogmatic and less assumptive, approach to the implementation of the American Convention is taken by Cerna, ‘The Inter-American Commission on Human Rights’, in ibid 85–92, and Vivanco and Bhansali, ‘Procedural Shortcomings in the Defence of Human Rights’, in ibid 429–32.
(6) The issue of indigence and impecuniosity in relation to the limitations (based on inaccessibility) on the rule of local remedies, both in diplomatic protection and in human rights protection, is discussed at length in C F Amerasinghe, ‘Indigence and Inaccessibility as Limitations on the Rule of Local Remedies’, in Hacia un Nuevo Orden Internacional y Europeo, Estudios en Homenaje al Profesor Don Manuel de Velasco (1993) 57. See also C F Amerasinghe (note 3 above) 327 ff.
(7) In the light of the above analysis, the implication is open to question that generally recognized rules of international law relating to the application of the rule in diplomatic protection must ‘suffer adjustment or adaptation’ in the context of the law of human rights protection in general and necessarily, resulting in unbridgeable and consolidated differences. This implication is found in Cançado Trindade (note 2 above).
(8) See Vivanco and Bhansali (note 5 above) 429–31.
(9) Marzioni v Argentina (1996), Report No 39/96, Case 11 673, paras 50–2.
(10) On the exhaustion of domestic remedies in connection with human rights law, particularly under the European Convention on Human Rights, see now Schermers, ‘Exhaustion of Domestic Remedies’, in 2 Liber Amicorum Judge Shigera Oda (2002) 947–75.
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