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Restricting Discretion: Judicial Review of Diplomatic Protection

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In the last 30 years, individuals have increasingly filed complaints against their national governments for failure to exercise diplomatic protection on their behalf, in particular in cases of serious violations of international human rights law. Despite the fact that diplomatic protection has traditionally been regarded as a discretionary right of states, the national courts have invariably decided to enter into the merits of the case and to review the exercise of diplomatic protection by the executive. Initially, a draft article on this subject was not accepted by the International Law Commission in the Draft Articles on first reading, but an encouraging provision was included in the Draft Articles adopted on second reading. The development discussed in this article shows support for an obligation to exercise diplomatic protection in case of serious violations of human rights law.

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