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Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of Canada

Published on October 7, 2009        Author: 

Elizabeth Prochaska is a Barrister at Matrix Chambers, London. She has recently completed a period as Judicial Assistant to Baroness Hale and Lord Brown in the House of Lords.

Omar Khadr, a Canadian citizen captured by US forces in Afghanistan at the age of 15 and imprisoned in Guantanamo Bay for 7 years, recently succeeded in convincing the Canadian Court of Appeal to order the Canadian government to request his immediate repatriation by the US  (Khadr v. Prime Minister of Canada 2009 FCA 246). This is no small achievement. Until the Court of Appeal’s judgment, no court – international or municipal – had recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state.

 The doctrine of diplomatic protection under which the state asserts its right to make claims on behalf of nationals injured abroad is a promising remedy for the human rights abuse of aliens. Governments can engage in all manner of conduct (some of it traditionally diplomatic, some of it outright hostile) under the guise of the doctrine. But as this brief summary of the current status of diplomatic protection shows it has yet to reach its full potential in either international or municipal human rights law.

 In its report on the subject in 2006, the International Law Commission (ILC) proposed a Convention on Diplomatic Protection which would attempt to resolve the dislocation between the traditional understanding of diplomatic protection as a discretionary right of the state and contemporary human rights vested in individuals. However, the ILC did not adopt the recommendation of its Rapporteur, John Dugard, that the Convention require states to guarantee an individual right to diplomatic protection. Instead, Draft Article 19, entitled ‘Recommended Practice’, suggests that states should be encouraged to exercise diplomatic protection ‘especially when significant injury occurred’ to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. Discussions in the Sixth Committee at the sixty-second session of the General Assembly 2007  raised the prospect of imposing a positive obligation on states to protect their nationals abroad, but diplomatic protection is not up for consideration by the Sixth Committee again until next year and it remains to be seen whether a Convention will ever be approved. For now at least, customary international law offers little comfort to those suffering human rights abuse abroad.

 In municipal law, the status of an individual right to protection, or a duty to protect, as the Canadian courts conceptualised it in Khadr, is equally uncertain. Read the rest of this entry…