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. As the ICJ recognised in Barcelona Traction Company Case (1970) ICJ Rep at [78],

“The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions.” 

But few states have chosen to do so (those that have are mainly in the former communist bloc). Given this absence of explicit rights, litigants must convince the courts to fashion an enforceable obligation from existing constitutional provisions or administrative law principles. 

 The UK courts considered the issue in relation to two Guantanamo cases: R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2003] UKHRR 76 and R (Al Rawi & Others) v Secretary of State for Foreign and Commonwealth Affairs [2006] HRLR 42. In both cases, the Court of Appeal held that human rights imperatives do not open the executive’s conduct of foreign affairs to review under ordinary administrative law principles. There might be an enforceable obligation to consider taking some action in relation to a British citizen abroad, as this would not impinge on a “forbidden area”, but the court could foresee no circumstances in which it would order substantive diplomatic protection.

If administrative law principles do not offer adequate redress, is there another source from which to derive an obligation? The obvious candidate is the European Convention, but that was held inapplicable in Abbasi (in part on the basis of the early Commission case Bertrand Russell Peace Foundation v UK (App 7597/76) (1978) 14 DR 117). The Convention does not contain an explicit right to diplomatic protection and any attempt to create one encounters two substantial hurdles. First, the national must fall within the jurisdiction of their national state. Second, they must make out a violation of one of the substantive articles (most probably Articles 3 and/or 5) by their national state.

 Jurisdiction, governed by Article 1 of the Convention, has been held by the European Court to be principally territorial, subject to those grounds of jurisdiction recognised under international law (Bankovic v Belgium (2007) 44 EHRR SE5). Jurisdiction could potentially be grounded in the claimant’s nationality (a recognised ground under international law), but the Court of Appeal did not consider the point in Abbasi, finding simply that the Bankovic principles came ‘nowhere near rendering Mr Abbasi within the jurisdiction of the United Kingdom for the purposes of Article 1’ (Abbasi at [77]).

 As for establishing a breach of an Article of the Convention, unless there is evidence (as there was in Khadr) of directly culpable conduct on the part of state agents acting abroad, the courts have to identify a positive obligation to protect nationals from the acts of third-party states. This is not inconceivable. A parallel can be drawn with cases of ill-treatment by private actors (e.g. Z v UK (2002) 34 EHRR 3) in which the state is liable for treatment which the authorities discover in the course of their duties and fail to prevent. In the case of private individuals acting on State territory, it is clear that the State has the tools at its disposal — the police, security services, and criminal justice system — to prevent or remedy harm to individuals. The positive obligation is a practical recognition of the state’s control over its people. The fact that ill-treatment occurs in a foreign state might be thought to exclude the possibility of a positive obligation to protect nationals abroad. But if we accept that diplomatic protection is a powerful remedial tool, which the state has a right in international law to exercise, this distinction seems less clear-cut.

The difficulties encountered under the Convention are more easily surmounted in systems with constitutional human rights guarantees. In South Africa, the Constitutional Court considered a request for diplomatic protection by a group of South African mercenaries captured and imprisoned in Zimbabwe in Kaunda v President of the Republic of South Africa (2005) (4) SA 235 (CC). Differing from the judgment of her colleagues (who appeared to reject the claim on the misguided basis that an order of diplomatic protection would impinge on the host State’s sovereignty by giving the provisions of the South African Constitution extra-territorial effect), Justice O’Regan held that the citizenship provision of s.3(2) of the  Constitution (“All citizens are equally entitled to the rights, privileges and benefits of citizenship”) gave rise to an obligation on the government to provide diplomatic protection, albeit the actual exercise of diplomatic protection would be subject to a deferent standard of review.

The decision in Khadr relied not on citizenship rights (the Canadian Charter of Fundamental Rights and Freedoms does not have equivalent provisions to the South African Constitution) but on s.7 of the Charter, which enshrines the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. In the Federal Court, O’Reilly J drew heavily on the government’s obligations under the Convention on the Rights of the Child to find that a duty to protect Mr Khadr was a principle of fundamental justice under s.7. The Court of Appeal narrowly construed O’Reilly J’s reasoning, finding that the fact that it had already been established in earlier proceedings (Canada (Justice) v Khadr, 2008 SCC 28) that Canadian officials had participated in interrogation of Mr Khadr at Guantanamo Bay, rendered an order requiring a demand for repatriation the only suitable remedy in the s.7 proceedings. As the Court of Appeal was keen to emphasise, the case turns on its own unique facts and does not resolve the question of whether a duty to protect the citizen exists absent direct state involvement in ill-treatment.

The case will be heard by the Canadian Supreme Court in November and it is to be hoped that broader consideration is given to the existence of a duty to protect. Khadr offers an opportunity for the recognition of a general obligation on the state to protect nationals imperilled abroad that could serve as a template for the development of a duty in both international and domestic jurisdictions.