Diplomatic Protection

Question 1

Barcelona Traction (locus standi)

Answer 1

Apart from obligations erga omnes, only those designated as beneficiaries of intl obligations have the right to enforce them

Question 2

Why is the facility of diplomatic protection claims required, and what is its basis?

Answer 2

Since intl law is primarily a law between States, generally only States have the procedural capacity to bring an action before an intl tribunal, so claims of private individuals/companies must be brought through the state of nationality. DP claims are based on the artifice that even where it is an individual who has been injured, the claim proceeds on the premise that it is the State which has been wronged

Question 3

Define diplomatic protection.

Answer 3

Art.1, ILC(DP) – DP is the “invocation by a State (C), through diplomatic action or other means of peaceful settlement, of the responsibility of another State (D) by an injury caused by an internationally wrongful act of D to a legal person that is a national of C”

Question 4

Mavrommatis + Barcelona Traction

Answer 4

When a State resorts to diplomatic protection, a State is really asserting its own right to ensure respect for the rules of intl law and is sole claimant (Mavrommatis)

It follows from this that the State has absolute discretion on how and whether to exercise its right of diplomatic protection – if the injured individual considers it has not received sufficient protection, its only remedy lies in municipal law (Barcelona Traction).

Question 5

Four exceptions to the rule in Panevezys-Saldutiskis Case?

Answer 5

1. Where the application of the nationality rules has been waived, generally by treaty (e.g. Art.8C of the TEU creates a treaty-based right of DP for all EU nationals within the jurisdiction of a member State).
2. Where an intl organisation brings a claim in respect of injuries to agents of the organisation incurred in the course of their duties (Reparations Case)
3. Obligations Erga Omnes (Art.48(2)b ARSIWA)
4. Art.8 of ILC(DP) for refugees and Stateless persons

Question 6

Nottebohm; 2 objections

Answer 6

1. Judge ad hoc Guggenheim – the requirement is essentially a formula of denial and arguably V should not lose his right to obtain a remedy on the intl plane just because his links w/ the state of nationality are weak.
2. Crawford notes that Nottebohm was unique in that the state of nationality (Lichtenstein) was attempting to bring a claim in DP against a state w/ whom V had a far closer and more long-standing connection and doubts if the result would have been the same had the claim been against a 3rd state

Question 7

Diallo (vs Nottebohm)

Answer 7

The ICJ permitted a claim in DP by Guinea, w/ whom V had tenuous connections, against the DRC, in which V had resided for 32 years, so clearly the Nottebohm “genuine link” requirement is not universal.

Question 8

Why is DP not very important as respects injury to companies?

Answer 8

The favoured means of dispute settlements for companies and shareholders are the ICSID and bilateral investment treaties (BIT), which avoid the political uncertainty in the discretionary nature of DP (acknowledged by ICJ in Diallo)

Question 9

Barcelona Traction (nationality of companies; 2 points)

Answer 9

1. The nationality of a company is that of its State of incorporation
2. ONLY the company can bring a claim in DP in respect of damage to its interests, not its shareholders. Lifting the corporate veil is unnecessary since a company is an entity distinct from its shareholders.

Question 10

Some judges in Barcelona Traction thought shareholders might be entitled to DP for damage to the company’s interests where the company had the nationality of the respondent State. Discuss.

Answer 10

Diallo rejected this idea, noting that a State does not typically incur intl responsibility for harming its own nationals. Moreover in Barcelona Traction it was decided that damage done to a company only gave the COMPANY rights, capable of legal protection, while the shareholders merely had interests.

Question 11

Diallo (nationality of companies, 2 points).

Answer 11

1. A claim in DP might be brought by the shareholders’ state of nationality where the direct rights of the shareholder are affected
2. However, a DP claim cannot be brought where the company has the nationality of the wrongdoing State

Question 12

Carnavere

Answer 12

Diplomatic protection of multiple nationals is governed by the principle of real or dominant nationality and in the event of a conflict, a nationality based on an effective link prevails

Question 13

Merge

Answer 13

Where on the test of real or dominant nationality, V has equally strong ties w/ two or more States, neither should be permitted to exercise DP on his behalf against the other, the rule of intl law being that one does not have a remedy on the intl plane against one’s own State

Question 14

Ethiopia v Eritrea

Answer 14

In the case of dual nationality it SEEMS a 3rd State is not entitled to contest the claim of one of the two powers whose national is interested in the case by reference to the nationality of the other power

Question 15

ELSI

Answer 15

The essence of the claim must have been brought before the competent domestic tribunals and pursued as far as permitted by local law, w/o success.

Question 16

Diallo (exhaustion of local remedies_

Answer 16

The local remedies that must be exhausted include all legal remedies, but the only administrative remedies included are those aimed at vindicating a right rather than obtaining a favour, unless they constitute an essential prerequisite for the admissibility of subsequent contentious proceedings

Question 17

Two illustrations of Art.15(a)?

Answer 17

Where the local court notoriously lacks independence (Robert E Brown) or there is a consistent and well-established line of precedents adverse to the alien (Panevezys-Saldutiskis)

Question 18

M/V Saiga (significance)

Answer 18

The absence of a jurisdictional connection between V and D at the date of V’s injury would preclude application of the exhaustion of local remedies rule as per Art.15(c), following orthodoxy (significance - indicates Ambatielos Claim will not be followed)

Question 19

Belgium v Senegal

Answer 19

The ICJ explicitly endorsed locus standi in the case of obligations erga omnes partes under the Torture Convention – any party to the Convention could invoke D’s responsibility w/ a view to ascertaining the alleged non-compliance and bringing that non-compliance to an end.

Question 20

South West Africa

Answer 20

The Court held that intl law did not recognise an actio popularis

Question 21

Barcelona Traction (erga omnes)

Answer 21

The Court noted that HR instruments did not explicitly confer on States the capacity to protect Vs of HR infringement irrespective of their nationality and could not be said to provide for universal locus standi.

Question 22

Schachter’s comment on universal locus standi?

Answer 22

States are reluctant to set precedents which could be used in future litigation against them and are thus unlikely to lodge claims in respect of obligations erga omnes unless their direct interests are involved.
Recognition of an actio popularis might even deter further acceptance of the ICJ’s compulsory jurisdiction/encourage reservations against actio popularis suits

Question 23

DRC v Rwanda

Answer 23

Even if intl law recognised an actio popularis, the jurisdictional rules regulating access to intl tribunals would prevent the ICJ from entertaining the claim w/o a jurisdictional nexus with the Court on the part of C and D, for the erga omnes character of a norm and the rule of consensual jurisdiction are two different things.