Comments on: Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of Canada http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-v-the-prime-minister-of-canada/ Blog of the European Journal of International Law Thu, 09 Feb 2012 00:55:12 +0000 hourly 1 http://wordpress.org/?v=3.3 By: Elizabeth Prochaska http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-v-the-prime-minister-of-canada/comment-page-1/#comment-499 Elizabeth Prochaska Thu, 22 Oct 2009 07:59:47 +0000 http://www.ejiltalk.org/?p=1603#comment-499 Thank you very much for your comment. I ought also to have clarified the position in Israel, where the court recognised a limited obligation to protect citizens abroad in the 1950s. A very useful list of those states which constitutionalise obligations can be found in John Dugard's First Report on Diplomatic Protection (http://daccessdds.un.org/doc/UNDOC/GEN/N00/330/76/PDF/N0033076.pdf?OpenElement). He also discusses the position in Germany and Israel. Thank you very much for your comment. I ought also to have clarified the position in Israel, where the court recognised a limited obligation to protect citizens abroad in the 1950s. A very useful list of those states which constitutionalise obligations can be found in John Dugard’s First Report on Diplomatic Protection (http://daccessdds.un.org/doc/UNDOC/GEN/N00/330/76/PDF/N0033076.pdf?OpenElement). He also discusses the position in Germany and Israel.

]]> By: John S. Webb http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-v-the-prime-minister-of-canada/comment-page-1/#comment-497 John S. Webb Wed, 21 Oct 2009 21:13:43 +0000 http://www.ejiltalk.org/?p=1603#comment-497 Please keep me informed, my wife Dr. Margaret R. Webb, with others, has organized a lecture & panel at the University of Calgary November 2nd, 2009 in the evening. You can telephone Peggy at 403 244 0901 if you wish to attend or otherwise be linked to this effort. Mr. Dennis Edney is on the panel, as well as counsel for the Canadian Civil Liberties Association, and, interestingly enough, poet & playright Sharon Pollack. Please keep me informed, my wife Dr. Margaret R. Webb, with others, has organized a lecture & panel at the University of Calgary November 2nd, 2009 in the evening. You can telephone Peggy at 403 244 0901 if you wish to attend or otherwise be linked to this effort. Mr. Dennis Edney is on the panel, as well as counsel for the Canadian Civil Liberties Association, and, interestingly enough, poet & playright Sharon Pollack.

]]> By: Nick Roguski http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-v-the-prime-minister-of-canada/comment-page-1/#comment-495 Nick Roguski Wed, 21 Oct 2009 19:27:21 +0000 http://www.ejiltalk.org/?p=1603#comment-495 Madam, your statement that no court has "recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state" requires a brief comment. Although it might not be widely known, German constitutional doctrine provides that the basic rights provisions of the German Constitution impose on the State a duty to protect ("Schutzpflicht") the legal rights and interests of its citizens not only vis-a-vis State agents, but also against foreign States. This principle has been affirmed by the German Constitutional Court several times, for instance in the Hess-decision of 16th December 1980 (2 BvR 419/80, reported in BVerfGE 55, 349). However, the Constitutional Court has always held that the Government has a wide discretion in deciding the means by which it tries to protect those rights and interests and consequently the standard of judicial review in such cases is limited. The standard of review might however be broader in such cases as the one decided by the Canadian Federal Court of Appeal, where the State has actively taken part in or benefitted from the acts of a foreign State towards a citizen, which constitute a breach of the citizen's basic rights. The Canadian Court of Appeal is indeed to be applauded for its ruling in the Khadr case and the development of an enforceable right to diplomatic protection. Hopefully more courts will follow this lead, as the Canadian Government was by no means the only one to participate in the outrage that is Guantanamo. The CoA is nevertheless not the first one to tread this path. Sincerely N.R. Madam,

your statement that no court has “recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state” requires a brief comment.

Although it might not be widely known, German constitutional doctrine provides that the basic rights provisions of the German Constitution impose on the State a duty to protect (“Schutzpflicht”) the legal rights and interests of its citizens not only vis-a-vis State agents, but also against foreign States. This principle has been affirmed by the German Constitutional Court several times, for instance in the Hess-decision of 16th December 1980 (2 BvR 419/80, reported in BVerfGE 55, 349). However, the Constitutional Court has always held that the Government has a wide discretion in deciding the means by which it tries to protect those rights and interests and consequently the standard of judicial review in such cases is limited. The standard of review might however be broader in such cases as the one decided by the Canadian Federal Court of Appeal, where the State has actively taken part in or benefitted from the acts of a foreign State towards a citizen, which constitute a breach of the citizen’s basic rights.

The Canadian Court of Appeal is indeed to be applauded for its ruling in the Khadr case and the development of an enforceable right to diplomatic protection. Hopefully more courts will follow this lead, as the Canadian Government was by no means the only one to participate in the outrage that is Guantanamo. The CoA is nevertheless not the first one to tread this path.

Sincerely

N.R.

]]> By: Christian Gour http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-v-the-prime-minister-of-canada/comment-page-1/#comment-472 Christian Gour Thu, 08 Oct 2009 12:43:28 +0000 http://www.ejiltalk.org/?p=1603#comment-472 ..et encore les Canadiens sont des pionniers ...tu apprécieras p-ê ce blog - un peu de DPI pour changer ..et encore les Canadiens sont des pionniers

…tu apprécieras p-ê ce blog – un peu de DPI pour changer

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