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CAN STATE ACTION ON BEHALF OF VICTIMS BE AN ALTERNATIVE TO INDIVIDUAL ACCESS TO JUSTICE IN CASE OF GRAVE BREACHES OF HUMAN RIGHTS?

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In judgment No. 238/2014 the Constitutional Court unhesitatingly gave prevalence to the right to jurisdictional protection over compliance with international law. The present paper argues that, at least in its reasoning, the Constitutional Court, instead of targeting exclusively the way in which international law regulates State immunity, should have assessed the possible role of alternative forms of protection of the rights of the victims of Nazi crimes. In particular, the Court should have considered whether negotiation can be an alternative form of protection of the rights of the victims and whether State action at the international level can substitute for individual access to justice. By taking into consideration the role of political organs of the State in the protection of the rights of nationals at the international level, it could have given its contribution to the current trend towards limiting the discretionary nature of diplomatic protection, particularly when grave breaches of human rights are at stake. It would also have contributed to delineate a possible way out of a situation of serious disrespect for international law.

10.1163/22116133-90000073
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/content/journals/10.1163/22116133-90000073
2015-10-22
2016-12-03

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