The Individual’s Right of Access to Justice and the Quest for a Diplomatic Solution

The aftermath of the Jurisdictional Immunities Case has shown that the relationship between constitutional courts and the ICJ cannot rely on highly sophisticated techniques of judicial dialogue apt to resolve potential conflicts of findings, in particular when individual rights are at stake. This encourages us to consider the importance of the potential power of national judges to involve state-level political organs in order to find a diplomatic solution. The opportunity to pursue a diplomatic solution, however, raises the thorny question of whether this availability of alternative means of dispute settlement at the international level might impact on (or somehow restrict) the individual’s right of access to justice. Since a negotiated solution depends upon the willingness of the parties, another crucial question concerns who should bear the risk of failing to find a settlement at the international level and the ensuing costs of lack of protection of the individuals involved.