The children (and wives) of foreign ISIS fighters
87
Federal Constitutional Court of Germany, the ‘irrationality of the government's decision’91 or its ‘total incomprehensiveness’.92 So far the decision not to repatriate FTFs’ family members taken by the Governments
of several States, also European, has been challenged on those grounds
only before French national courts.
More in detail, France’s top administrative court, ie the Conseil
d’Etat, on 23 April 2019 rejected the demands for repatriation made by
two French nationals for their daughter and her children, currently held
in Syria.93 The claimants asked the court to, inter alia, reverse the decision
of the lower court, which applied the theory of the acte de gouvernement
to justify its lack of jurisdiction,94 and recognize instead France’s obligation to repatriate its nationals who are exposed to severe human rights
violations and could not access local remedies whilst in the SDF camp.95
The Conseil d’Etat found that it lacks jurisdiction, as proactively seeking
the return of French nationals would require the State’s engagement in
negotiations with foreign authorities or even its intervention on a foreign
territory. These conducts, according to the Court, fall under the remit of
France’s international relations,96 and − contrary to the domestic
developments referred to above − are, thus, exempted from judicial
scrutiny.
As anticipated above, the expression ‘diplomatic protection’ is also
used informally to mean the assistance given by diplomatic missions and
consular posts to their nationals. In furtherance of this objective, missions
and consular posts operate facing a number of legal, practical and financial hurdles, and perform a wide range of protective functions. Those
functions range from the sensitive political assistance − which may be
required by a person unjustly imprisoned or charged − through administrative functions such as renewal of a passport or registration of a birth
91
Constitutional Court of South Africa, Kaunda v President of the Republic of South
Africa (2005) 4 South African L Reports 235 (CC), 44 I.L.M. 173, 35.
92
Federal Constitutional Court (Bundesverfassungsgericht) 2 BvR419/80 (16
December 1980) 395-398.
93
Conseil d’Etat Décision No 429668, Ordonnance du 23 avril 2019.
94
ibid 2.
95
On the exception to the exhaustion of local remedies rule see ILC, ‘Draft Articles
on Diplomatic Protection’ (n 84) art 15. See also C F Amerasinghe, Diplomatic Protection
(OUP 2008) chapter 11.
96
Conseil d’Etat Décision No 429668 (n 93) 5.