Protection of Individuals Before the ICJ Flashcards
What is Diplomatic Protection?
Pursuant to Art. 1 of the Draft Articles on Diplomatic Protection, DP is the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.
(IN SHORT: DP is a means for a State to take diplomatic and other action against another State on behalf of its national whose rights and interests have been injured by that State).
Can a State bring a claim before the ICJ in order to protect the interests of a private person?
YES: Pursuant to Art. 1 of the Draft Articles on Diplomatic Protection (DADP)–which this Court, at para. 39 of its Diallo Preliminary Objections Judgment, held to be representative of CIL– a State may invoke the responsibility of another State for an IWA for injury caused to a natural or legal person of the invoking State.
What are the requirements that must be met before a State may exercise Diplomatic Protection?
Pursuant to para. 40 Diallo (Republic of Guinee v DRC), Preliminary Objections, three requirements must be met before a State may exercise DP:
(1) The natural or legal person is a national of the State seeking to exercise DP;
(2) An injury has been caused to the legal rights of that national by the State against whom DP is sought to be asserted; and
(3) The national has exhausted all local remedies within the territory of the State that is the cause of the injury.
What remedies should be exhausted?
Pursuant to Art. 14(2) of the Draft Articles on Diplomatic Protection, which codified the customary rule identified by this Court at p. 6 of its Interhandel Preliminary Objections Judgment, all legal remedies that are open to the injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the impugned State must be exhausted.
Do all norms enshrined in the Universal Declaration of Human Rights represent customary law?
No–there is insufficient State Practice regarding socio-political rights for a rule of CIL to have come into existence.
Can the International Covenant on Civil and Political Rights, the International Covenant on Economical, Social and Cultural Rights, the European Convention of Human Rights and other human rights agreements be relevant for the ICJ, given that those are particular agreements, and not general international law?
As these instruments are international agreements governed by international law, they are treaties within Art. 38(1)(a) of this Court’s Statute and are, therefore a primary source of law which this Court is bound to apply.
To what extent will the ICJ consider the jurisprudence of the ECtHR, IACtHR and the HRC?
As stated by this Court at paras. 67-68 of its Diallo Merits Judgment, this Court will take “due account” of the interpretations of regional treaties made by the independent bodies that have been “specifically created” to monitor the implementation of the treaties in question–including the ECtHR and the IACtHR.
By analogy, this Court should take due account of the interpretations of the HRC.
To what extent will the ICJ consider the comments made by the HRC?
Pursuant to para. 66 of the Diallo Merits Judgment, this Court will give great weight to comments made by the HRC, because it was established specifically to supervise the application of that Treaty, and to do so will help achieve the necessary clarity and essential consistency of international law.
Has this Court ever restated its Diallo [66] dicta?
YES: At para. 101 of its 2021 Preliminary Objections Judgment in the case concerning the Application of the CERD (Qatar/UAE).
