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Australian Year Book of International Law |
John Dugard[∗]
My friendship of nearly 40 years with Ivan Shearer is born of international law. I first met Ivan in 1966 when he visited South Africa in the course of a research project into succession to treaties, under the guidance of D P O’Connell. From 1971 to 1973 Ivan advised the Lesotho government on treaty matters, and this enabled him to make frequent visits to Johannesburg. Thereafter we met at international law conferences, served together for many years on the International Law Association’s Committee on Extradition and bumped into each other in different parts of the world as is the custom of international lawyers. In 1991 I took Ivan’s place at the University of New South Wales (and home in Paddington) while he advised government in Canberra. More recently we have been able to meet in Geneva, when the sessions of the Human Rights Committee and the International Law Commission (ILC) have coincided. Although rooted in a common love for international law, our friendship is much more than a professional one. From our first meeting we have been friends. Ivan is my son’s godfather, a sign of the closeness of our relationship. Despite the geographical distance that has separated us I like to think that we have shared our lives. We may not have re-shaped international law to accord with our common vision, but we have had much pleasure in talking about international law, its politics and its personalities, and about the meaningful and meaningless things that friends talk about. It is a pleasure to write for the present festschrift to honour Ivan on the occasion of his retirement.
The present article on diplomatic protection is not a description of the draft articles on diplomatic protection, adopted by the ILC at first reading in June 2004.[1] Rather, it is an evaluation of the draft articles and the extent to which they advance human rights, from the perspective of the Special Rapporteur responsible for initiating them. It is an account of the achievements and failings of the draft articles, of the articles accepted and of those rejected. It is hoped that it will provide insights into the work of the ILC.
Traditionally, diplomatic protection is viewed as the right of the state to have its own sovereignty respected through the personae of its nationals. This approach, known as the Vattelian fiction,[2] is well-captured in the dictum of the Permanent Court of International Justice (PCIJ) in the Mavrommatis Palestine Concessions Case (Jurisdiction):
By taking up the case of one of its subjects and resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right – its right to ensure, in the person of its subjects, respect for the rules of international law.[3]
Approval was given to this approach by the International Court of Justice (ICJ), albeit in different language, in the Nottebohm Case when it stated:
Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the State.[4]
This traditional approach is premised on two principles central to classical international law: first, the paramountcy of the state; and, second, the insignificance of the individual, who has no subjective rights based on international law.[5]
The growth of international human rights law had led some to argue that diplomatic protection has lost its raison d’être and that it should cease to exist. Roughly this argument runs as follows.[6] It is no longer necessary to accord privileged treatment to aliens judged by the international minimum standard as this standard has now been replaced by an international human rights standard, which accords to national and alien the same standard of treatment: a standard incorporating the core provisions of the Universal Declaration of Human Rights.[7] The individual is now a true subject of international law with standing to enforce his or her human rights at the international level before international tribunals through international or regional human rights conventions, or, in the case of commercial rights, through bilateral investment treaties. As a consequence the right of a state to claim on behalf of its national should be restricted to cases where there is no other method of settlement agreed on by the alien and the injuring state. In such a case the claimant state acts as agent for the individual and not in its own right. The right of a state to assert its own right when it acts on behalf of its national is an outdated fiction that should be discarded – except, perhaps, in cases in which the real national interest of the state is affected. This occurs only where the injury is systematic and directed at a substantial number of nationals, thereby providing evidence of a policy of discrimination against a particular state’s nationals. In such a case the state of nationality is in fact injured as the conduct of the territorial state constitutes an affront to the state itself.
Those who would discard diplomatic protection err on two counts. First, they seriously exaggerate the extent of the protection of human rights by international conventions. Second, they are wrong in rejecting a useful tool for the protection of human rights on the ground that it is illogical and premised on a fiction.
Clearly the individual has more rights under international law today than she enjoyed 50 years ago. But whether this makes her a ‘subject’ of international law is open to question. It is better to view the individual as neither ‘object’ (the traditional view) nor ‘subject’ of international law, but rather as a participant in the international legal order.[8] As such the individual may participate in the international legal order by exercising her rights under human rights treaties or bilateral investment agreements. At the same time it is necessary to recognise that while the individual may have rights under international law, her remedies are limited.
While the European Convention on Human Rights[9] may offer real remedies to millions of Europeans, it is difficult to argue that the American Convention on Human Rights,[10] or the African Charter on Human and Peoples’ Rights,[11] have achieved the same degree of success. Moreover, the majority of the world’s population, situated in Asia, is not covered by a regional human rights convention. To suggest that universal human rights conventions, particularly the International Covenant on Civil and Political Rights (ICCPR),[12] provide individuals with effective remedies for the protection of their human rights is to engage in a fantasy which, unlike fiction, has no place in legal reasoning. The sad truth is that only a handful of individuals, in the limited number of states that accept the right of individual petition to the monitoring bodies of these conventions, have obtained or will obtain satisfactory remedies from these conventions.
The position of the alien abroad is no better. Universal and regional human rights conventions do extend protection to all individuals – national and alien alike – within the territory of states parties. But there is no multilateral convention that seeks to provide the alien with remedies for the protection of her rights outside the field of foreign investment. In 1985, the United Nations General Assembly adopted the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live,[13] which seeks to extend the rights contained in the Universal Declaration of Human Rights to aliens. The Declaration provides no machinery for its enforcement, but it does reiterate the right of the alien to contact his consulate or diplomatic mission for the purpose of protection. This starkly illustrates the current position that aliens may have rights under international law as human beings, but they have no remedies under international law – in the absence of a human rights treaty – except through the intervention of their national state. Until the individual acquires comprehensive procedural rights under international law, it would be a setback for human rights to abandon diplomatic protection. As an important instrument in the protection of human rights, it should be strengthened and encouraged. As Professor Richard Lillich wrote in 1975:
Pending the establishment of international machinery guaranteeing third party determination of disputes between alien claimants and States, it is in the interests of international lawyers not only to support the doctrine [of diplomatic protection] but to oppose vigorously any effort to cripple or destroy it.[14]
The objection to diplomatic protection on the ground that it is premised on the false fiction that an injury to an individual is an injury to the state,[15] shows a total ignorance of the important role played by fictions in the achievement of equity.[16] Of course there are fictional elements in the institution of diplomatic protection. The exhaustion of local remedies rule, the requirement of continuous nationality and the practice of fixing damages suffered in diplomatic protection cases to accord with the loss suffered by the individual all suggest that the state’s claim in diplomatic protection proceedings is at least in part that of the individual. But this is not the whole picture. As Brierly wrote in 1928:
Such a view [that an injury to a national is an injury to the state of nationality] does not, as is sometimes suggested, introduce any fiction of law; nor does it rest … on anything so intangible as the “wounding of national honour”; rather it merely expresses the plain truth that the injurious results of a denial of justice are not, or at any rate are not necessarily, confined to the individual sufferer or his family, but include such consequences as the “mistrust and lack of safety” felt by other foreigners similarly situated … Such Government frequently has a larger interest in maintaining the principles of international law than in recovering damage for one of its citizens in a particular case …[17]
Aliens are still in need of protection. Human rights instruments do not grant them effective remedies except in a minority of cases. Diplomatic protection remains an effective institution for the protection of a state’s nationals abroad. The unsound logic of its theoretical foundation is greatly outweighed by its usefulness. Diplomatic protection provides a potential remedy for the protection of millions of aliens who have no access to remedies before international bodies and a more effective remedy to those who have access to the often ineffectual remedies contained in international human rights instruments. It should, therefore, be retained. Whether it is seen as a procedure for the enforcement of the right of a state to have its nationals protected abroad or as the right of a person in a country other than that of which he is a national to have his rights respected in that country with the help of his state of nationality is immaterial. It is the usefulness of the institution in the protection of human rights that counts.
The above pragmatic approach to diplomatic protection and human rights has, possibly, characterised the work of the ILC towards diplomatic protection. While the Commission as a body has on occasion rejected proposals designed to promote a strong human rights approach to diplomatic protection, and individual members of the Commission have on many occasions expressed the view that diplomatic protection should not be seen as a human rights institution, the Commission has been mindful of the rights of the individual in its formulation of the draft articles, without forsaking the traditional philosophy of diplomatic protection expounded in the Mavrommatis Case. In the result the draft articles may be described as a modest contribution to the human rights of aliens. How this has been achieved will now be considered.
I have approached my task as Special Rapporteur on diplomatic protection in a maximalist fashion. I have provided the Commission with more rather than fewer draft articles, allowing it to choose to discard articles that it considers unnecessary or unacceptable. In the result I have proposed 27 articles,[18] of which only 19 have been approved. Most of those discarded have had little to do with human rights. An article portraying the forcible rescue of nationals as the ultimate exercise of diplomatic protection,[19] two articles advocating a procedural approach to the exhaustion of local remedies rule,[20] an article on the burden of proof in matters relating to the exhaustion of local remedies,[21] an article on the Calvo Clause[22] and three articles on the implications of the Reparation for Injuries Case[23] for diplomatic protection[24] fall into this category. My first report, however, contained one article that would, if adopted, have greatly advanced diplomatic protection. This was a provision that sought to impose a duty on states, albeit in very limited circumstances, to exercise diplomatic protection on behalf of their nationals.
Article 4 of my first report provided:
1. Unless the injured person is able to bring a claim for such injury before a competent international court or tribunal, the state of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another state. 2. The state of nationality is relieved of this obligation if:
(a) the exercise of diplomatic protection would seriously endanger the overriding interests of the state and/or its people;
(b) another state exercised diplomatic protection on behalf of the injured person; and
(c) the injured person does not have the effective and dominant nationality of the state. 3. States are obliged to provide in their municipal law for the enforcement of this right before a competent domestic court or other independent national authority.[25]
In introducing this article I fully acknowledged that it was proposed de lege ferenda as it had little state practice to support it. After an extensive debate on this proposal, in which the view was repeatedly expressed that diplomatic protection was not a human right, I had no alternative but to propose that the provision be not referred to the drafting committee – that is, to withdraw it – on the grounds that ‘the general view was that the issue was not yet ripe for the attention of the Commission and that there was a need for more state practice and, particularly, more opinio juris before it could be considered’.[26] I greatly regret that this was necessary.
The greatest weakness of diplomatic protection is that it is left entirely to the state of nationality to decide whether or not to exercise diplomatic protection on behalf of its national. That it has an absolute discretion under international law was confirmed by the ICJ in the Barcelona Traction Case when it stated:
Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and whatever extent it thinks fit, for it is its own right that the state is asserting. Should the national or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to municipal law, if means are available, with a view to furthering their cause or obtaining redress …
The State must be viewed as the sole judge to decide whether its protection will be granted, and to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case … The State enjoys complete freedom of action.[27]
The right of a state to protect a national when it pleases and whether it pleases has no place in contemporary international law. If a state party to a human rights convention is required to ensure to everyone within its jurisdiction effective protection against violation of the rights contained in the convention and to provide adequate means of redress,[28] there is no reason why a state of nationality should not be obliged to protect its own national when his or her most basic human rights are seriously violated abroad. This applies particularly in the case of ‘a grave breach of a jus cogens norm’.
In 1957 Charles de Visscher complained that ‘the absolute discretion left to the state in the exercise of protection goes ill with the principle that the treatment due to aliens is a matter of international law’.[29] Happily there are signs of change on the part of some states in this respect. The Constitutions of many states recognise the right of the individual to receive diplomatic protection for injuries suffered abroad.[30] Whether this right is enforceable in the courts of these states is far from clear. Indeed it seems that in many cases – particularly in the case of former communist states – this right is simply a constitutional embellishment. On the other hand, declared rights are sometimes taken seriously by courts and there is always the possibility that they will come to be enforced in time. Moreover a right to diplomatic protection has been claimed in states where there is no clear legal or constitutional obligation on the part of the government to grant diplomatic protection. The German Federal Constitutional Court (Bundesverfassungsgericht) has recognised the duty of the state to provide diplomatic protection if certain prerequisites have been met.[31] In the Netherlands,[32] Spain, [33] Austria,[34] Belgium[35] and France[36] attempts, albeit unsuccessful, have been made to direct the government to provide diplomatic protection, which shows that there is at least some perceived basis in law for such a claim. In England several attempts have been made to secure diplomatic protection through the courts, most recently in R (on the application of Abbasi and Another) v Secretary of State for Foreign and Commonwealth Affairs,[37] in which an order was unsuccessfully sought to compel the British government to provide diplomatic protection to British nationals held by the United States of America in Guantanamo Bay. In this case counsel for the applicants cited my first report on diplomatic protection in support of his argument that the decision to refuse diplomatic protection might be reviewed by a court of law. This case did not close the door on such applications as it held that the executive’s decision not to grant diplomatic protection was in principle reviewable, but that such review was not justifiable on the facts before the court.
This matter has recently been the subject of a decision of the South African Constitutional Court in Kaunda and others v President of the Republic of South Africa,[38] in which an order was sought to compel the South African government to intervene diplomatically on behalf of a group of South African nationals who had been arrested in Zimbabwe, allegedly en route to Equatorial Guinea to assist in a coup to overthrow the government of that state. These nationals had been subjected to inhuman and degrading treatment in Zimbabwean prisons and had good cause to fear that they would be denied a fair trial and sentenced to death if extradited to Equatorial Guinea. The majority of the Court dismissed the application both on the facts and out of deference to the executive in its conduct of foreign affairs. Although the Court accepted, relying on Barcelona Traction[39] and the failure of my proposal to the ILC, that international law does not at present oblige states to provide diplomatic protection to its nationals, the majority judgment and the concurring and dissenting opinions recognised that in terms of the 1996 South African Constitution, premised as it is on a commitment to international human rights norms, there is some obligation on the part of the government to protect its nationals abroad. Chaskalson CJ, on behalf of the majority, declared that:
There may … be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable and a court would order the government to take appropriate action.[40]
In a concurring opinion, Ngcobo J went further, stating that under the Constitution ‘the government has a constitutional duty to grant diplomatic protection to nationals abroad against violations or threatened violations of fundamental international human rights’.[41] In dissent, O’Regan J held that nationals have an ‘entitlement to diplomatic protection’[42] and proposed that the government be ordered ‘to take appropriate steps to provide diplomatic protection to the applicants to seek to prevent the egregious violation of international human rights norms’.[43]
In all fairness, it was probably too much to have expected the Commission to approve article 4 de lege ferenda in the light of the scant evidence of state practice in its favour. The Commission is a cautious body, which prefers to act only when state practice and doctrine are fairly settled on a particular matter. It rarely exercises its power of progressive development in a molar way, preferring instead to legislate in a molecular fashion. One should perhaps be grateful that the Commission did not insist on a provision recognising the discretionary right of a state to accord diplomatic protection, à la Barcelona Traction. As it is, the draft articles, while asserting the ‘right’ and ‘entitlement’ of the state of nationality to exercise diplomatic protection,[44] are silent on the question whether there is a correlative duty on a state to protect its nationals abroad. This allows international law to develop unhindered in such a direction. My regret is that the Commission was not prepared to nudge this process forward by accepting the cautiously worded and highly qualified proposed article 4.
The draft articles on diplomatic protection are not written in the language of human rights. On the contrary, they repeatedly reaffirm that diplomatic protection is the right of the state. Article 1 provides that diplomatic protection consists of resort to diplomatic action by a state ‘adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another State’. Article 2 proclaims that ‘[a] State has the right to exercise diplomatic protection’, and article 3 declares that ‘[t]he State entitled to exercise diplomatic protection is the State of nationality’. Subsequent articles follow the traditional pattern adopted in prior attempts at the codification of diplomatic protection.[45] They focus on the two major components of the subject – nationality of claims (in respect of both natural and legal persons) and the exhaustion of local remedies. Hidden in the interstices of these articles, however, are a number of principles that will advance the rights of aliens abroad. Moreover, there are provisions that go beyond the traditional law of diplomatic protection and extend protection to stateless persons, refugees and ships’ crews.
I begin with article 4, which reads:
For the purposes of diplomatic protection of natural persons, a State of nationality means a State whose nationality the individual sought to be protected has acquired by birth, descent, succession of States, naturalization or in any other manner, not inconsistent with international law.[46]
This provision may at first sight appear to be an innocuous formulation of the nationality rule, recognising birth, descent and naturalisation as the normal factors that connect the individual with the state. What is significant, however, is what it omits. Article 4 does not require a state to prove an effective or genuine link between itself and its national, along the lines suggested in the NottebohmCase,[47] as an additional factor for the exercise of diplomatic protection, even where the national possesses only one nationality. The Commission took the view that there were certain factors that served to limit Nottebohm to the facts of the case in question, particularly the fact that the ties between Mr Nottebohm and Liechtenstein (the applicant state) were extremely tenuous,[48] compared with the close ties between Mr Nottebohm and Guatemala (the respondent state) for a period of over 34 years, which led the ICJ to repeatedly assert that Liechtenstein was ‘not entitled to extend its protection to Nottebohm vis-à-vis Guatemala’.[49] The Commission believed that the Court did not intend to expound a general rule[50] applicable to all states but only a relative rule according to which a state in Liechtenstein’s position was required to show a genuine link between itself and Mr Nottebohm in order to permit it to claim on his behalf against Guatemala, with whom he had extremely close ties. The Commission was mindful of the fact that if the genuine link requirement proposed by Nottebohm was strictly applied it would exclude millions of persons from the benefit of diplomatic protection. In today’s world of economic globalisation and migration, there are millions of persons who have drifted away from their state of nationality and made their lives in states whose nationality they never acquire. Moreover, there are countless others who have acquired nationality by birth, descent or operation of law of states with which they have a most tenuous connection. By omitting the requirement of genuine link for the purposes of diplomatic protection the Commission has rendered millions of persons eligible for protection that might otherwise have been excluded.
Strict compliance with the continuous nationality rule, requiring a protected person to be a national of the protecting state at both the time of the injury and at the time of the official presentation of the claim, has created serious injustice in cases where the individual has changed his or her nationality for reasons unrelated to the bringing of a diplomatic claim.[51] Article 5 confirms the traditional rule but recognises an exception in:
respect of a person who is its national at the date of the official presentation of the claim but was not a national at the time of the injury, provided that the person has lost his or her former nationality and has acquired, for a reason unrelated to the bringing of the claim, the nationality of that State in a manner not inconsistent with international law.
This means that a person who acquires a new nationality as a necessary consequence of factors such as marriage, adoption or the succession of states will still be eligible for diplomatic protection by his or her new state of nationality. Diplomatic protection may not, however, be exercised by the new state of nationality against a former state of nationality of the injured person in respect of an injury incurred when that person was a national of the former state of nationality and not the present state of nationality.[52]
Dual or multiple nationality is a fact of international life. An individual may acquire more than one nationality as a result of the parallel operation of the principles of jus soli and jus sanguinis and of the conferment of nationality by naturalisation, which does not result in the renunciation of a prior nationality. Despite this, many national legal systems prohibit dual or multiple nationality for reasons ranging from the demands of compulsory military service to sheer chauvinism. Previously, attempts have been made to reduce or abolish dual nationality by treaty but these have failed.[53]
Article 6 provides that:
(1) Any State of which a dual or multiple national is a national may exercise diplomatic protection in respect of that national against a State of which that individual is not a national. (2) Two or more States of nationality may jointly exercise diplomatic protection in respect of a dual or multiple national.
Although there is support for the requirement of a genuine or effective link between the state of nationality and a dual or multiple national in the case of the exercise of diplomatic protection against a state of which the injured person is not a national, in both arbitral decisions[54] and codification endeavours,[55] the weight of authority does not require such a condition.[56] The Commission has therefore abandoned this requirement and thereby expanded the scope for protection of dual nationals.
More controversial is the case in which one state of nationality seeks to exercise diplomatic protection against another state of which the injured person is also a national. In the past there was strong support for the rule of non-responsibility according to which one state of nationality might not bring a claim in respect of a dual national against another state of nationality. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws declares in article 4 that:
A state may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.[57]
Later codification proposals adopted a similar approach and there was also support for this position in arbitral awards. Even before 1930 there was, however, support in arbitral decisions for another position, namely that the state of dominant or effective nationality might bring proceedings in respect of a national against another state of nationality. This jurisprudence was relied on by the Italian-United States Conciliation Commission in the Mergé claim in 1955, which held:
The principle, based on the sovereign equality of States, which excludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is that of the claiming State. But it must not yield when such predominance is not proved, because the first of these two principles is generally recognized and may constitute a criterion of practical application for the elimination of any possible uncertainty.[58]
The rule thus adopted was applied by the Conciliation Commission in over 50 subsequent cases concerning dual nationals. Relying on these cases, the Iran-United States Claims Tribunal has applied the principle of dominant and effective nationality in a number of cases.[59]
The ILC has taken the position that the principle that allows a state of dominant or effective nationality to bring a claim against another state of nationality reflects the present position in customary international law. This conclusion is given effect to in article 7, which reads:
A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the time of the injury and at the date of the official presentation of the claim.
This provision is consistent with developments in international human rights law, which accords legal protection to individuals, even against a state of which they are nationals.
The draft articles on the diplomatic protection of corporations and shareholders follow the principles expounded by the ICJ in the Barcelona Traction Case.[60] Article 9 provides that:
For the purposes of diplomatic protection of corporations, the State of nationality means the State under whose law the corporation was formed and in whose territory it has its registered office or the seat of its management or some similar connection.
Article 11 deals with the protection of shareholders. It provides:
The State of nationality of the shareholders in a corporation shall not be entitled to exercise diplomatic protection on behalf of such shareholders in the case of an injury to the corporation unless:
(a) The corporation has ceased to exist according to the law of the State or incorporation for a reason unrelated to the injury; or
(b) The corporation had, at the time of the injury, the nationality of the State alleged to be responsible for causing injury, and incorporation under the law of the latter State was required by it as a precondition for doing business there.
The rule limiting the right of diplomatic protection to the state of nationality of the corporation, expounded in the Barcelona Traction Case,[61] causes great hardship to shareholders in the case in which the state of nationality itself is responsible for the injury to the corporation. It is particularly unjust when the state in question has insisted on incorporation under its laws as a pre-condition for doing business there. This was recognised in an obiter dictum in Barcelona Traction when the Court stated:
It is quite true that it has been maintained that, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which has been the victim of a violation of international law. Thus a theory has been developed to the effect that the State of the shareholders has a right of diplomatic protection when the State whose responsibility is invoked is the national State of the company.[62]
The view that the state of nationality of the shareholders should be able to exercise diplomatic protection in this situation has considerable support[63] but is vigorously contested by capital-importing states.[64] Moreover, doctrine on the subject is divided.[65] The Commission’s decision to include this principle may be seen as a measure designed to overcome an injustice to shareholders and, consequently, as a provision that advances human rights.
The draft articles dealing with the exhaustion of local remedies follow the standard pattern. They define local remedies,[66] distinguish between direct and indirect claims[67] and expound the exceptional circumstances in which local remedies need not be exhausted.[68] The exceptions to the local remedies rule are likewise, with one exception, the orthodox exceptions: that the local remedies provide no reasonable possibility of effective redress, undue delay, and waiver.[69] The novelty in this provision concerns the principle that local remedies need not be exhausted where:
There is no relevant connection between the injured person and the State alleged to be responsible or the circumstances of the case otherwise make the exhaustion of local remedies unreasonable.[70]
This sub-article excuses the injured individual from exhausting local remedies because of the absence of a voluntary link or territorial connection between the injured individual and the respondent state or because of the existence of a special hardship. Thus it would, for instance, exempt an individual from exhausting local remedies where his property has suffered environmental harm caused by pollution, or where he is on board an aircraft that is shot down by a state whose airspace has been accidentally violated; or where serious obstacles are placed in the way of his using local remedies by the respondent state or some other body. By widening the exceptions to the local remedies rule, the Commission has undoubtedly facilitated access to diplomatic protection.
The previous section has dealt with draft articles that extend the protection of aliens within the scope of traditional diplomatic protection. Two articles go beyond traditional diplomatic protection and provide protection to non-nationals.
Article 8 extends diplomatic protection to stateless persons and refugees. It provides:
1. A state may exercise diplomatic protection in respect of a stateless person who, at the time of the injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State. 2. A State may exercise diplomatic protection in respect of a person who is recognized as a refugee by that State when that person, at the time of the injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State. 3. Paragraph 2 does not apply in respect of an injury caused by an internationally wrongful act of the state of nationality of the refugee.
This provision departs from the traditional rule that a state may exercise diplomatic protection on behalf of its nationals only, proclaimed by the United States-Mexican Claims Commission in Dickson Car Wheel Company v United Mexican States in the following language:
A State … does not commit an international delinquency in inflicting an injury upon an individual lacking nationality, and consequently, no State is empowered to intervene or complain on his behalf either before or after the injury.[71]
Article 8 gives effect to the concern for the status of both stateless persons and refugees evidenced in such conventions as the Convention of the Reduction of Statelessness of 1961,[72] the Convention Relating to the Status of Refugees of 1951[73] and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.[74] It is clearly an exercise in progressive development of the law.
Another neglected and unprotected group in society is the ship’s crew. Many of today’s ships’ crews come from economically weak states with neither the capacity nor the interest to protect their nationals employed on foreign ships who have suffered injuries in the service of such ships. Moreover, large ships’ crews often comprise persons of several nationalities. In these circumstances it is wise to recognise the right of the flag state to exercise protection on behalf of its crew injured by a third state in the course of their service. As the International Law of the Sea Tribunal stated in The M/V Saiga (No 2) Case (Saint Vincent and the Grenadines v Guinea),[75] when it recognised the right of the flag state to protect the crew:
If each person sustaining damage were obliged to look for protection from the State of which such a person is a national, undue hardship would ensue.[76]
In short, it is much easier and more efficient for one state to exercise protection on behalf of all crew members than to require the states of nationality of all crew members to bring separate claims on behalf of their nationals.
The draft articles do not confer on the flag state the right of diplomatic protection. Instead they recognise the right of both the state of nationality of the crew and the flag state to seek redress on behalf of the crew. Article 19 provides:
The right of the State of nationality of the members of the crew of a ship to exercise diplomatic protection on their behalf is not affected by the right of the State of nationality of a ship to seek redress on behalf of such crew members, irrespective of their nationality, when they have been injured in the course of an injury to the vessel resulting from an international wrongful act.
The right of the flag state to protect members of the ship’s crew is not categorised as diplomatic protection. Nor should it be seen as having replaced diplomatic protection. In the view of the Commission both diplomatic protection by the state of nationality and protection by the flag state should be recognised, without priority being accorded to either means of protection. Ships’ crews are often exposed to hardships emanating from the flag state, in the form of poor working conditions, or from third states, in the event of the ship being arrested. In these circumstances they should receive the maximum protection that international law can offer. Hence the approval given by article 19 to two forms of protection for members of ships’ crews.
The draft articles of the ILC on diplomatic protection adopted on first reading in 2004 do not pretend to be a human rights instrument. They do not proclaim the right of diplomatic protection to be a human right, with the role of the state reduced to that of agent to enforce the right of the individual alien injured abroad. Instead they respect the traditional approach that views diplomatic protection as the right of the state: ‘its right to ensure, in the person of its subjects, respect for the rules of international law’.[77] But they do in many ways advance the human rights of the alien within the framework of the traditional law. In this sense they constitute a contribution, albeit modest, to the protection of human rights.
Finally, the draft articles make it clear that they are to complement, and not to supplant, the rules and principles governing the protection of the human rights of the alien; that they are to be seen as different methods for the achievement of a common goal: the protection of human rights. Today both international human rights conventions and customary international law confer rights and remedies on states other than the state of nationality and, in some cases, the individual herself in respect of the treatment of the alien abroad. It is not the intention of the draft articles to trump these rights. This is made clear by article 17, which provides:
[∗] Professor of Public International Law, University of Leiden, Netherlands; Professor Emeritus, University of the Witwatersrand, South Africa; Member of the International Law Commission; Member of the Institute of International Law.
[1] Text of the draft articles on diplomatic protection adopted by the International Law Commission on first reading (Draft arts) (2004) Report of the ILC (56th sess) A/59/10, ch IV, s C, 17-93 (2004).
[2] In 1758 the Swiss jurist Emmerich Vattel declared that: ‘Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen’, The Law of Nations (1758) 136.
[3] [1924] PCIJ (ser A) No 2, 112. This dictum was repeated by the PCIJ in the Panevezys-Saldutiskis Railway Case [1939] PCIJ (ser A/B) No 76, 16.
[4] Liechtenstein v Guatemala [1955] ICJ Rep 24.
[5] E M Borchard, The Diplomatic Protection of Citizens Abroad or The Law of International Claims (1919) 17.
[6] F V Garcia Amador, ‘State Responsibility. Some New Problems’ (1958 II) 94 Recueil des Cours 421, 437-39; Second Report, UN Doc A/CN.4/106 [1957] Yearbook of the International Law Commission, vol II, 112. See also M Bennouna, ‘Preliminary Report on Diplomatic Protection’, A/CN.4/484, 34 (1998).
[7] Universal Declaration of Human Rights, GA Res 217A (10 December 1948).
[8] R Higgins, Problems and Process: International Law and How We Use It (1994) 48-55.
[9] European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222.
[10] OAS Treaty Series No 36 (22 November 1969) 1144 UNTS 123.
[11] African Charter on Human and Peoples’ Rights, reprinted in (1982) 21 ILM 58.
[12] International Covenant on Civil and Political Rights (23 March 1976) 999 UNTS 171.
[13] Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, GA Res 40/144 (1985).
[14] R Lillich, ‘The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law under Attack’ (1975) 69 American Journal of International Law 359.
[15] M Bennouna, above n 6, 15, 54; Garcia Amador, above n 6, 413-28; S N Guha Roy, ‘Is the Law of State Responsibility of States for Injuries to Aliens a Part of Universal International Law?’ (1961) 55 American Journal of International Law 863, 877-78.
[16] See on the actio ficticia in Roman law, R Sohm, The Institutes (transl by J Crawford Ledlie) (3rd ed, 1907) 259-60.
[17] J L Brierly, ‘The Theory of Implied State Complicity in International Claims’ (1928) 9 British Yearbook of International Law 48.
[18] The Commission has separated the present arts 3 and 4, which previously comprised one art only.
[19] First Report on Diplomatic Protection, ILC 52nd Session, UN Doc A/CN4/506, 1 36 (2000).
[20] Second Report on Diplomatic Protection, ILC 53rd Session, UN Doc A/CN.4/514 (2001).
[21] Third Report on Diplomatic Protection, ILC 54th Report UN Doc A/CN.4/523 (2002).
[22] Third Report on Diplomatic Protection, addendum, ILC 52nd Session, UN Doc A/CN.4/523/Add 1 (2002).
[23] Reparation for injuries suffered in the Service of the United Nations [1949] ICJ Rep 174.
[24] Fifth Report on Diplomatic Protection, UN GAOR, ILC 56th Session UN Doc A/CN.4/538 (2004).
[26] Report of the ILC (52nd Session) Suppl 10, A/55/10, 158, 456 (2000).
[27] Case concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain) [1970] ICJ Rep 44, 78.
[28] See art 2 of the ICCPR; art 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965) 660 UNTS 195; art 13 and 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46 (17 December 1984).
[29] C de Visscher, Theory and Reality in Public International Law (first published 1953) (transl by P E Corbett) (1957) 275.
[30] These states include: Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People’s Democratic Republic, Latvia, Lithuania , Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the Former Yugoslav Republic of Macedonia, Turkey, Ukraine, Vietnam and Yugoslavia.
[31] W K Geck, ‘Diplomatic Protection’ in Encyclopaedia of Public International Law (EPIL) (1992) 1059-60; Hess-Entscheidung, 7 July 1975, BverfGE 55, 349, reproduced in 90 ILR 387; Ostverträge, 16 December 1980, BverfGE 40, 14, reproduced in 78 ILR 177. See also E Klein, ‘Anspruch auf diplomatischen Schutz?’ in G Ress and T Stein (ed), Der diplomatische Schutz im Völker- und Europarecht: Aktuelle Probleme und Entwicklungtendenzen (1996) 125.
[32] Van Damme Case, NRC Handelsblad 5 January 2000; HMHK v the Netherlands (1994) 94 ILR 342.
[33] Commercial FSA v Council of Ministers (1992) 88 ILR 694.
[34] Cases cited in I Seidl-Hohenveldern, ‘Austria’ in E Lauterpacht and J G Collier, Individual Rights and the State in Foreign Affairs: An International Compendium (1977) 32.
[35] Mandelier (1966) 81 Journal des tribunaux 721 and (1969) Pasicrisie belge II 246 cited in M Waelbroeck, ‘Belgium’ in Lauterpacht and Collier, above n 34, 59.
[36] Cases cited in P Weil, ‘France’ in Lauterpacht and Collier, above n 34, 278-79.
[37] R (on the application of Abbasi and Another) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2002] All ER (D) 70.
[38] Samuel Kaunda and Others v President of the Republic of South Africa and Others, Case CCT 23/04, judgment of 4 August 2004, (2005) 44 ILM 173. The question whether there is a duty on the South African government to provide diplomatic protection is also before the High Court in another matter, Swissbourgh Diamond Mines v President of the Republic of South Africa. Judgment is expected soon in this case.
[41] Ibid 210.
[42] Ibid 238.
[43] Ibid 271.
[44] Draft arts, above n 1, arts 2 and 3.
[45] See, eg the 1927 resolution of the Institute of International Law on ‘International Responsibility of States for Injuries on their Territory to the Person or Property of Foreigners’, reproduced in F V Garcia Amador, First Report, A/CN.4/96 in 1956 Yearbook of the International Law Commission vol II, 227; 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws [1937] LNTSer 109; (1930) 179 LNTS 89; Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, reproduced in L B Sohn and R R Baxter, ‘Responsibility of States for Injuries to the Economic Interests of Aliens’ (1961) American Journal of International Law 545, 548.
[48] Ibid 25.
[49] Ibid 26.
[50] Draft arts, above n 1, 31, 5. This interpretation was placed on the Nottebohm Case by the Italian-United States Conciliation Commission in the Flegenheimer Case (1958) 25 ILR 148.
[51] See the Stevenson claim 9 UNRIAA 494; the Milani claim 10 UNRIAA 591; Minnie Stevens Eschauzier v Mexican State claim, 5 UNRIAA 209.
[52] Art 5(3).
[53] The 1930 Hague Conference on the Codification of International Law set out to reduce or abolish dual and multiple nationality but ended up recognising its existence in art 3 of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws: see [1937] LNTSer 109; 179 LNTS 89; M O Hudson, ‘The First Conference for the Codification of International Law’ (1930) 24 American Journal of International Law 450. The European states attempted to abolish dual nationality in the 1963 Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, (1971) ETS No 43. Similar attempts have been made in the League of Arab States in the framework of the 1954 Convention on Nationality.
[54] See the decision of the Yugoslav-Hungarian Mixed Arbitral Tribunal in the De Born Case, Annual Digest and Reports of Public International Law Cases
1925-26, case No 205.
[55] See art 4 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, above n 45; resolution on ‘Le Caractère national d’une réclamation internationale présentée par un Etat en raison d’un dommage subi par un individu’ adopted by the Institute of International Law at its Warsaw Session in 1965: Résolutions de l’Institut de Droit International, 1957-1991 (1992), 56 (art 4 (b)).
[56] Salem Claim (1932) 2 UNRIAA 1188; Italian-United States Conciliation Commission, Mergé Claim (1955) 22 ILR 456; Verano claim, 25 ILR 464-465; Dallal v Iran (1983) 3 Iran-US Claims Tribunal Reports 23.
[57] Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws [1937] LNTSer 109; (1930) 179 LNTS 89.
[59] See, in particular, Esphahanian v Bank Tejarat (1983) 21 Iran-US Claims Tribunal Reports 166; case No A/18 (1984) 5 Iran-US Claims Tribunal Reports 251.
[62] Ibid 48.
[63] Delagoa Bay Railway Company, Moore, Digest of International Law (1906) vol VI, 648; Mexican Eagle (El Aguila), Whiteman, Digest of International Law, vol VIII, 1272-274; Romano-americano, Hackworth, Digest of International Law, vol V, 841; El Triunfo 15 UNRIAA, 467 (1902); Deutsche Amerikanische Petroleum Gesellschaft Oil Tankers 2 UNRIAA, 779 (1926). See, too, the separate opinions in the Barcelona Traction Case of Judges Fitzmaurice, above n 27, 72-75; Tanaka, above n 27, 134; and Jessup, above n 27, 191-93.
[64] This is made clear in the separate opinions of Judges Padilla Nervo and Ammoun in Barcelona Traction Case: above n 27, 257-59 and 318 respectively.
[65] See, in favour of the exception, L Caflisch La protection des sociétés commerciales et des intérêts indirects en droit international public (1969); M Jones, ‘Claims on Behalf of Nationals who are shareholders in Foreign Companies’ (1949) 26 British Yearbook of International Law 225. See, against E Jiménez de Aréchaga, ‘International Responsibility’, in Max Sørensen (ed), Manual of International Law (1968) 531, 580-81.
[66] Draft arts, above n 1, art 14.
[67] Ibid art 15.
[68] Ibid art 16.
[69] Ibid art 16(a), (b), and (d).
[70] Ibid 16(c).
[71] Dickson Car Wheel Company v United Mexican States 4 UNRIAA 678 (1931).
[72] Convention on the Reduction of Statelessness (1975) 989 UNTS 175.
[73] Ibid 189 UNTS150.
[74] Ibid 1001 UNTS 45.
[75] The M/V Saiga (No 2) Case (Saint Vincent and the Grenadines v Guinea) (1999) 38 ILM 1323.
[76] Ibid [107].
[77] Mavrommatis Case, above n 3, 112.
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