Interest in Matter
It is necessary to establish a legal interest in respect of a claim brought to an international forum. Claims may be brought by States on their own behalf or on behalf of their nationals.
The distinct questions of locus standi/interest and admissibility arise. In common with other legal systems, international law requires that those who bring a case, have an interest in the matter, the subject of the complaint.
Apart from obligations owed to the whole community, i.e. basic obligations in terms of human rights and fundamental values, the general position is that only those who are the beneficiaries of obligations under international law have a right to enforce them. A State may not enforce an obligation undertaken to another State and not to it.
As set out in other chapters, generally, individuals, corporations and other entities do not have access to International Tribunals. Particular treaties may allow such access, but the starting position is that States/international organisations are the primary players in and subjects of international law.
The settlement of disputes through the International Court of Justice presupposes a bilateral dispute between states. Rules on admissibility strike a balance between the international enforcement of obligations and respect for the sovereign power of states to adjudicate matters in their jurisdictions.
Jurisdiction is an attribute of sovereignty and generally, national courts are the first point of call. In this context, recourse to international law is a default remedy where the national court has failed to grant the appropriate relief. This is reflected in the “exhaustion of local remedies” principle.
These principles are somewhat diluted by the emergence of certain modern categories of obligations, particularly in the fields of human rights and the protection of culture, . which are owed to the community generally.
Libility & Wrongs
Legal liability is generally determined by reference to the type of obligation which is breached. There is a distinction between injury to direct interests and those which indirectly injure or affect interests, usually by injury to nationals or other legal entities recognised under domestic law.
It is presumed that states, as custodians of sovereign rights, have an interest in wrongs which directly affect them. Such wrongs will include injury to its property, members of its diplomatic missions, armed forces, executive, Head of State etc.
Where damage or injury is suffered by a natural person or a corporation recognised by its laws, the general position is that the right to bring a claim lies with the State of nationality. This is diplomatic protection. The decision as to whether to exercise it or not may be influenced by political considerations. The State is the judge as to whether protection will be granted and, if so, to what extent.
The English Court of Appeal has held that diplomatic protection does not give the right to an enforceable duty under domestic law. The court did accept that it had the power to review the exercise of discretion which could be challenged if it could be shown to be contrary to natural justice or irrational (the usual standard for judicial review).
It follows from the above principle that a State, which recovers damages on behalf of its nationals, need not pass them to the persons concerned. The State may take action even if the individuals affected oppose it.
The discretionary nature of diplomatic protection has been criticised as inconsistent with human rights. Some States recognize diplomatic protection as an individually enforceable right under their Constitution.
Nationality may be conferred by sovereigns. It is presumed that nationality granted by a state is valid and recognised.
Nationality generally follows in accordance with the terms of the relevant national law. However, a State’s claim of nationality will not be conclusive in terms of the exercise of diplomatic principles.
The criteria for nationality must be consistent with the principles of international law. Nationality law may be disregarded if it is inconsistent with fundamental human rights or discriminatory etc.
International organisations may be entitled to exercise diplomatic protection in order to discharge their functions. They may even be addressed against the state of the individual’s nationality.
Link with State
There must be a genuine and clear link between the individual and the State, which exercises diplomatic protection. There must be a genuine legal bond in accordance with the individual’s connection with the State. A legal bond must have a basis as a social fact of attachment, a general connection of existence and sentiments together with the existence of reciprocal rights and duties.
It has been argued that the requirement for a genuine link introduces uncertainty and vagueness and may be open to abuse. It may lead to wrongs not being redressed because of the nature of the link between the national and the State.
The genuine link criteria is not universally accepted. It has been asserted by the International Court of Justice. It is accepted, however that the nationality claims may not be exercised in bad faith or where they are manifestly inconsistent with principles of international law.
Diplomatic protection may be exercised in respect of corporates. Difficult issues may arise in determining the nationality of corporations. There are several theories and principles, some of which are incompatible.
Some cases have taken the view that the place of incorporation is critical. Some courts have looked behind the corporation to its shareholders. However, the general principle that corporations are separate entitiey is upheld, which contradicts this approach. There have been views that the nationalities of shareholders may be relevant where the corporation has ceased to exist.
States may extend protection to their own nationals who own corporations in other states. Some courts have looked at the substance of the shareholders behind the corporation.
Some courts have applied the genuine link test formulated in the case of individuals and deny that the place of incorporation gives automatic diplomatic protection. There is strong support for the view that where local incorporation is required, as a matter of law that shareholding interest protection is also required.
Multi-nationalities of corporates may cause difficulties. Similar issues arise with individuals with dual nationality. In the case of individuals, the real or dominant nationality is broadly accepted as the appropriate one for diplomatic protection.
Where nationality is equally strong as between the claims of two states, neither should be able to exercise diplomatic protection against another state of which he is national. Otherwise, the sovereign equality of states would be undermined.
In considering whether nationality is dominant, regard will be given to nationality at birth, residence, states of naturalisation, employment, financial interests, language and the bona fides of the acquisition of nationality.
There is support for the view that the right of shareholders is a secondary right, which may be used if the national state of the company has failed to act on its behalf. However, the majority position is that the secondary right can only come into existence after the primary right has been extinguished and that the non-exercise of protection by the state with the primary right does not necessarily extinguish it.
The protection of shareholders is consistent with the genuine links doctrine, which has emerged in the case of individuals. In practice, States have been prepared to intervene and exercise diplomatic protection to protect shareholder interests in foreign corporations.
There is a substantial body in favour of the principle of protection of shareholding interest.
The connection of nationality is not always required and may be waived. It may be varied by treaty. It may be delegated to another State.
Treaties may protect non-nationals. The EU Treaty creates treaty-based diplomatic protection for all EU nationals within the jurisdiction of a Member State, irrespective of nationality.
Nationality is generally inapplicable to stateless persons, persons who are a minority group, refugees and non-nationals with long-term residence claiming diplomatic protection.
The above deals with bilateral duties and obligations. The State wronged must demonstrate an injury to its interests or those of its national.
Duties to Community
The second category of claims is those owed to the international community as a whole. Certain obligations are owed under treaties which are designed to protect collective interests.
include fundamental principles such as basic human rights. If the violation is within the scope of the protected interests, any states which are party to the treaty may be entitled to a presumptive right to make representations or bring a claim.
The Vienna Convention on the Law of Treaties entitles States to a treaty to terminate by reason of a material breach. This need not be a breach by which they are directly affected.
The right of states to make representations or a claim in the general interest applies in relation to obligations owed internationally. Equivalent principles will be found in international treaties, particularly in the area of human rights.
States are, however, reluctant to rule on the lawfulness of conduct when it touches on the conduct of another State which is not a party to the case. A court may not act even if the right is one owed universally.
Local Remedies Exhausted I
A claim may not be taken under international law unless the person on whose behalf it is made has exhausted its local remedies in the state against which the action is taken. A state should be given the opportunity to exercise jurisdiction in matters over its territory. An individual by subjecting himself to the latter’s law, is assumed to have taken the risk that it may be applied to him/ her /it/.
This is a matter of practical convenience. The principle applies not only to legal remedies but also to remedies which may be available only as a matter of discretion and grace. In this sense, the local remedies must be exhausted to their fullest extent.
However, if the local remedies are not in fact, available or are unlikely to yield any results, the obligation may not apply. However, it may not be readily apparent that the local remedy is not available.
The above principle applies to claims brought on behalf of a national as opposed to claims brought by the State on its own behalf. In some cases, it may be difficult to distinguish between these two categories of claim.
Local Remedies Exhausted II
States sometimes bring claims on their own behalf and on behalf of the nationals simultaneously. A number of tests have been put forward. Some have looked at the preponderance of interest. This looks at the substance off the claim and characterises it by having regard to its principal objectives.
On some views, the rule is procedural and on other views, it is substantive. If it is substantive, then the remedy does not exist at all until local remedies have been exhausted. If it is procedural, it is a question of admissibility. Another view takes different approaches to the kinds of wrongs concerned.
Where a national is injured by a violation of a rule of domestic law, no international responsibility can arise until local remedies have been exhausted. In this case, the principle is substantive in nature.
The question of whether the claim is procedural or substantive can have significant consequences. States may agree to exclude the operation of the principle. This is inconsistent with the substantive viewpoint as it implies that states can agree to make something wrongful when it would not ordinarily be so.
It is argued that there is no obligation to exhaust local remedies where there are no voluntary links between the individual and the state concerned. This argument holds that there should be some degree of connection and that the requirement may be dispensed with where there is no such connection. The requirement may be dispensed with by treaty.
Important Notice! This website is provided for informational purposes only! It is a fundamental condition of the use of this website that no liability is accepted for any loss or damage caused by reason of any error, omission, or misstatement in its contents.
Draft Articles; The articles on this website are in draft form and are subject to further review for typographical errors and, in some cases, updating and correction. It is intended to include references to the sources of materials and acknowledgements in the final version. The content of articles with [EU] in the title and some of the articles in the section on Agriculture are a reproduction of or are based on European or Irish public sector information.