{"id":10390,"date":"2022-07-14T20:13:03","date_gmt":"2022-07-14T20:13:03","guid":{"rendered":"http:\/\/legalblog.ie\/admissibility-of-claims\/"},"modified":"2022-12-03T21:38:55","modified_gmt":"2022-12-03T21:38:55","slug":"admissibility-of-claims","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/admissibility-of-claims\/","title":{"rendered":"Admissibility of Claims"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Interest_in_Matter\" title=\"Interest in Matter\">Interest in Matter<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Private_Parties\" title=\"Private Parties\">Private Parties<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Libility_Wrongs\" title=\"Libility &amp; Wrongs\">Libility &amp; Wrongs<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Diplomatic_Protection\" title=\"Diplomatic Protection\">Diplomatic Protection<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Link_with_State\" title=\"Link with State\">Link with State<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Corporates\" title=\"Corporates\">Corporates<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Multi-State_Links\" title=\"Multi-State Links\">Multi-State Links<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Shareholders\" title=\"Shareholders\">Shareholders<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Non-Nationals_Protected\" title=\"Non-Nationals Protected\">Non-Nationals Protected<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Duties_to_Community\" title=\"Duties to Community\">Duties to Community<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Local_Remedies_Exhausted_I\" title=\"Local Remedies Exhausted I\">Local Remedies Exhausted I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/admissibility-of-claims\/#Local_Remedies_Exhausted_II\" title=\"Local Remedies Exhausted II\">Local Remedies Exhausted II<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Interest_in_Matter\"><\/span>Interest in Matter<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>It is necessary to establish a legal interest in respect of a claim brought to an international forum.\u00a0 Claims may be brought by States on their own behalf or on behalf of their nationals.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 A State may not enforce an obligation undertaken to another State and not to it.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Private_Parties\"><\/span>Private Parties<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>As set out in other chapters, generally, individuals, corporations and other entities do not have access to International Tribunals.\u00a0 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.<\/p>\n<p>The settlement of disputes through the International Court of Justice presupposes a bilateral dispute between states.\u00a0 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.<\/p>\n<p>Jurisdiction is an attribute of sovereignty and generally, national courts are the first point of call.\u00a0 In this context, recourse to international law is a default remedy where the national court has failed to grant the appropriate relief.\u00a0 This is reflected in the \u201cexhaustion of local remedies\u201d principle.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Libility_Wrongs\"><\/span>Libility &amp; Wrongs<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Legal liability is generally determined by reference to the type of obligation which is breached.\u00a0 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.<\/p>\n<p>It is presumed that states, as custodians of sovereign rights, have an interest in wrongs which directly affect them.\u00a0 Such wrongs will include injury to its property, members of its diplomatic missions, armed forces, executive, Head of State etc.<\/p>\n<p>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.\u00a0 This is diplomatic protection.\u00a0 The decision as to whether to exercise it or not may be influenced by political considerations.\u00a0 The State is the judge as to whether protection will be granted and, if so, to what extent.<\/p>\n<p>The English Court of Appeal has held that diplomatic protection does not give the right to an enforceable duty under domestic law.\u00a0 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).<\/p>\n<p>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.\u00a0 The State may take action even if the individuals affected oppose it.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Diplomatic_Protection\"><\/span>Diplomatic Protection<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The discretionary nature of diplomatic protection has been criticised as inconsistent with human rights.\u00a0 Some States recognize diplomatic protection as an individually enforceable right under their Constitution.<\/p>\n<p>Nationality may be conferred by sovereigns.\u00a0 It is presumed that nationality granted by a state is valid and recognised.<\/p>\n<p>Nationality generally follows in accordance with the terms of the relevant national law.\u00a0 However, a State\u2019s claim of nationality will not be conclusive in terms of the exercise of diplomatic principles.<\/p>\n<p>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.<\/p>\n<p>International organisations may be entitled to exercise diplomatic protection in order to discharge their functions.\u00a0 They may even be addressed against the state of the individual\u2019s nationality.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Link_with_State\"><\/span>Link with State<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There must be a genuine and clear link between the individual and the State, which exercises diplomatic protection.\u00a0 There must be a genuine legal bond in accordance with the individual\u2019s 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.<\/p>\n<p>It has been argued that the requirement for a genuine link introduces uncertainty and vagueness and may be open to abuse.\u00a0 It may lead to wrongs not being redressed because of the nature of the link between the national and the State.<\/p>\n<p>The genuine link criteria is not universally accepted. It has been asserted by the International Court of Justice.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Corporates\"><\/span>Corporates<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Diplomatic protection may be exercised in respect of corporates.\u00a0 Difficult issues may arise in determining the nationality of corporations.\u00a0 There are several theories and principles, some of which are incompatible.<\/p>\n<p>Some cases have taken the view that the place of incorporation is critical.\u00a0 Some courts have looked behind the corporation to its shareholders.\u00a0 However, the general principle that corporations are separate entitiey is upheld, which contradicts this approach.\u00a0 There have been views that the nationalities of shareholders may be relevant where the corporation has ceased to exist.<\/p>\n<p>States may extend protection to their own nationals who own corporations in other states.\u00a0 Some courts have looked at the substance of the shareholders behind the corporation.<\/p>\n<p>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.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Multi-State_Links\"><\/span>Multi-State Links<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Multi-nationalities of corporates may cause difficulties.\u00a0 Similar issues arise with individuals with dual nationality.\u00a0 In the case of individuals, the real or dominant nationality is broadly accepted as the appropriate one for diplomatic protection.<\/p>\n<p>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.\u00a0 Otherwise, the sovereign equality of states would be undermined.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Shareholders\"><\/span>Shareholders<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>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.<\/p>\n<p>There is a substantial body in favour of the principle of protection of shareholding interest.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Non-Nationals_Protected\"><\/span>Non-Nationals Protected<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The connection of nationality is not always required and may be waived.\u00a0 It may be varied by treaty.\u00a0 It may be delegated to another State.<\/p>\n<p>Treaties may protect non-nationals.\u00a0 The EU Treaty creates treaty-based diplomatic protection for all EU nationals within the jurisdiction of a Member State, irrespective of nationality.<\/p>\n<p>Nationality is generally inapplicable to stateless persons, persons who are a minority group, refugees and non-nationals with long-term residence claiming diplomatic protection.<\/p>\n<p>The above deals with bilateral duties and obligations.\u00a0 The State wronged must demonstrate an injury to its interests or those of its national.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Duties_to_Community\"><\/span>Duties to Community<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The second category of claims is those owed to the international community as a whole.\u00a0 Certain obligations are owed under treaties which are designed to protect collective interests.<\/p>\n<p>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.<\/p>\n<p>The Vienna Convention on the Law of Treaties entitles States to a treaty to terminate by reason of a material breach.\u00a0 This need not be a breach by which they are directly affected.<\/p>\n<p>The right of states to make representations or a claim in the general interest applies in relation to obligations owed internationally.\u00a0 Equivalent principles will be found in international treaties, particularly in the area of human rights.<\/p>\n<p>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.\u00a0 A court may not act even if the right is one owed universally.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Local_Remedies_Exhausted_I\"><\/span>Local Remedies Exhausted I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 A state should be given the opportunity to exercise jurisdiction in matters over its territory.\u00a0 An individual by subjecting himself to the latter\u2019s law, is assumed to have taken the risk that it may be applied to him\/ her \/it\/.<\/p>\n<p>This is a matter of practical convenience.\u00a0 The principle applies not only to legal remedies but also to remedies which may be available only as a matter of discretion and grace.\u00a0 In this sense, the local remedies must be exhausted to their fullest extent.<\/p>\n<p>However, if the local remedies are not in fact, available or are unlikely to yield any results, the obligation may not apply. \u00a0However, it may not be readily apparent that the local remedy is not available.<\/p>\n<p>The above principle applies to claims brought on behalf of a national as opposed to claims brought by the State on its own behalf. \u00a0In some cases, it may be difficult to distinguish between these two categories of claim.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Local_Remedies_Exhausted_II\"><\/span>Local Remedies Exhausted II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>States sometimes bring claims on their own behalf and on behalf of the nationals simultaneously. A number of tests have been put forward.\u00a0 Some have looked at the preponderance of interest.\u00a0 This looks at the substance off the claim and characterises it by having regard to its principal objectives.<\/p>\n<p>On some views, the rule is procedural and on other views, it is substantive.\u00a0 If it is substantive, then the remedy does not exist at all until local remedies have been exhausted.\u00a0 If it is procedural, it is a question of admissibility.\u00a0 Another view takes different approaches to the kinds of wrongs concerned.<\/p>\n<p>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.\u00a0 In this case, \u00a0\u00a0the principle is substantive in nature.<\/p>\n<p>The question of whether the claim is procedural or substantive can have significant consequences. States may agree to exclude the operation of the principle.\u00a0 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.<\/p>\n<p>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.\u00a0 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.\u00a0 The requirement may be dispensed with by treaty.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-10390\" data-postid=\"10390\" class=\"themify_builder_content themify_builder_content-10390 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Interest in Matter It is necessary to establish a legal interest in respect of a claim brought to an international forum.\u00a0 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[139],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10390"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=10390"}],"version-history":[{"count":2,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10390\/revisions"}],"predecessor-version":[{"id":21035,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10390\/revisions\/21035"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=10390"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=10390"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=10390"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}