The law of state responsibility Naveen

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The Law of State Responsibility

-breach by international law subjects of its obligation = entails international responsibility

-SR enunciates the consequences of a breach by international subjects as well as the permissible

responses to such breaches

-discuss on the element of SR and defences available to avoid liability (exclude responsibility)

1) Nature of State Responsibility

-responsibility arises from breach of an international obligation.

Eg : fails to honour a treaty, violates territorial responsibility of another state, damages the territory

or other property of another state

-development of the law of SR is influenced by the work of ILC on the SR in 1949 – submitted their

Draft Article 2001 to GA of the UN (taking into account suggestions and recommendations from

government of the member state) – GA adopted resolution to take note of the Commission’s Articles

on Responsibility of States for Internationally Wrongful Act 2001

2) The element of SR

Article 2 of the Articles on Responsibility of States – there is an internationally wrongful act of a state

when conduct consisting of an action or omission

1)is attributable to the State under international law

2)constitutes a breach of an international obligation of the State

Kalau satisfy these two elements + provided that there are no defences available = state is

responsible for any breach

2.1 Attribution of conduct to State

-state can act only by and through its organ

-state organ is considered as acting for the state and thus, the conduct is attributable to the State

2.1.1 Conduct of State Organ

Article 4 – the conduct of a state organ shall be considered an act of that state under IL, whether the

organ exercises legislative, executive, judicial or any other functions, whatever position it holds in

the organisation of the state, and whatever its character as an organ of the central government / of

a territorial unit of the state

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-state organ = individual or collective entities making up the organisation of the state and acting o

behalf of it.

State is responsible for the conduct of its own organs and officials

Immunity from Legal Process

According to a well established rule of IL, the conduct of any organ of a state must be regarded as an

act of that State. This rule is of a customary character.

3 main organs of State

Executive organ (the government, ministries and government departments, police and forces, secret

agent)

Southern Pacific Properties (Middle East) Ltd v Arab Republic of Egypt

The Southern Pacific Properties entered into a contract with Egyptian Government to develop land

for tourism in Egypt. Due to intense public opposition, the Egyptian Government withdrew the

permission. It was held that the act in question were the act of the Egyptian authorities including the

highest executive authority of the government and that a state is responsible for wrongful act of its

organ.

Rainbow Warrior case (conduct of government secret agent)

Rainbow Warrior, a Greenpeace vessel when it was leaving to protest French nuclear test in the

Pacific, was blown up in Auckland Harbour by French Government secret service agent. The French

Government admitted its responsibility for the destruction of the vessel. New Zealand sought and

received an apology and compensation for the violation of its territorial sovereignty.

Judicial organ

Can be the cause of ST in the context of ‘denial of justice’ – example of a breach of international

obligation by the judicial organ of a state for which the state is responsible

-in respect of the application of a treaty, if the courts decline to give effect to the treaty or are

unable to do so because the necessary change has not been made = the judgment involve the state

in a breach of treaty

Legislative organ

State is responsible if the act of parliament are contrary to IL (yang dah incorporate dalam national

law)

Superior and subordinate organ

Article 4 – does not make a distinction between the act of superior and subordinate organ

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Conduct by lower level official – still attributable

Massey’s claim

US citizen was murdered in Mexico. The culprit was arrested but later escaped from the prison when

the assistant prison warder allowed him to leave. Tribunal rejected Mexico’s claim that it was not

responsible because of the low status of the official – Mexico responsible.

Organ of the central government or of a territorial unit of the State

The France/Mexico Claims Commission in the Pellat case

“the principle of the international responsibility of a federal state for all the act of its separate states

which gives rise to claims by foreign states”

2.1.2 in an official capacity

-State will be responsible only if that person or entity act “in an official capacity”

-kalau act of individual, no connection with the official function = state is not responsible

Mallen case

A Mexican consul had been violently attacked and beaten twice by an American police officer. As for

the first attack, the evidence indicated a motiveless of a private individual who happened to be an

official. On the second attack, the American police officer, showing hi badge to assert his “official

capacity” struck Mallen with his revolver and took him at gun point to the country jail. CH – US was

responsible for the second assault.

2.1.3 Persons or entities exercising element of governmental authority (Article 5)

Article 5 – attribution of conduct to a state which is not state organ in the sense of Article 4 but

authorized to exercise “elements of governmental authority”

-refer to a situation = in some countries where the law of the state empowers certain public

corporations and even private companies to exercise element of governmental authority”

Eg : airlines companies having the power in relation to immigration control

2.1.4 Responsibility for ultra vires act (Article 7)

Article 7 – the conduct of a state or person, entity empowered to exercise elements of the

government authority shall be considered an act of the state under IL if the organ, person, entity

acts in that capacity, even if it exceeds its authority or contravenes instruction

Caire claim

A French national was murdered by two Mexican military officers, who after failing to extort money,

took him to the military barracks and shot him. The tribunal held that, for the ultra vires acts of the

official to be attributable to the States “they should have acted as authorised officials or organs and

should have used powers or measures appropriate to their official character”

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Youmans claim

A mob gathered around a house in Mexico within which were three American nationals. The local

mayor ordered a lieutenant to proceed with troops to quell the riot and put an end to the attack

upon the Americans. The troops however, upon arriving at the scene, opened fired on the house and

resulted with the death of the Americans. The commission stated that the participation of the

soldiers in the murder could not be regarded as acts by private individual when it was clear that the

men were on duty under the immediate supervision and in the presence of a commanding officer.

Mexico was responsible.

2.1.5 Conduct of persons directed or controlled by a state (Article 8)

General rule – conduct of a person is not attributable to the state

Article 8 – the conduct of a person or group of persons shall be considered an act of a state under IL

if the person is

i)acting on the instruction of the state

state organ supplement their own action by recruiting private person/group who acts as “auxiliaries”

while remaining outside the official structure of a state (as volunteers)

eg : private person enlisted for a police search and cause injury to a foreign national – the act is

attributable to the state

Zafiro case

The US was held responsible for looting by the civilian crew of a merchant vessel, employed as a

supply vessel by American Naval forces during US war with Spain, under a command of a merchant

captain who was under the order of an American naval officer. The tribunal emphasised the failure

to proper control in the circumstances.

ii)acting under the direction or control of the state

-private person acts under the State’s direction or control

Nicaragua case

The question was whether the conduct of the contras, an insurrection movement against the

Nicaraguan Government was attributable to the US so as to hold US responsible for breaches of

international humanitarian law committed by the contras. This question was examined by the ICJ in

term of effective control. Even though US had provided heavy subsidies and other support, there is

no evidence that the US actually exercised such a degree of control. For US to be responsible, it

would in principle have to be proved that the State had effective control of the military and

paramilitary operations in the course of the violations being committed.

ILC in its commentary to Article 8 – “such conduct will be attributable to the state only if it is

directed / controlled the ‘specific operation’ and the conduct complained was the integral part of

that operation. It obviously adopts the ‘effective control’ test of the Nicaragua case.

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Conduct of an insurrectional / other movement

Divided into two

i)conduct of an insurrectional movement which becomes the new government of a state

Article 10 – the conduct of an insurrectional movement which becomes the new government of a

state shall be considered an act of that state under IL

Bolivar Railway Co claim

“the nation is responsible for the obligation of a successful revolution from its beginning”

-state is responsible not only for the wrongful act of the movement, but also for the wrongful act

committed by the former government

ILC commentary on Article 10 – The situation requires that acts committed during the struggle for

power by the apparatus of the insurrectional movement should be attributable to the state,

alongside acts of the then established government.

Short v Iran

An American citizen was employed by an American company in Iran. He alleged that he was

forcefully expelled from Iran three days before the Islamic Revolutionary Government took office

and claimed damages for his loss of employment benefits. The commission affirmed the principle

that where a revolution leads to the establishment of a new government, the state is held

responsible for the act of the overthrown government

Article 10 (3) – exceptional cases where the State was in a position to adopt measures of vigilance,

prevention of punishment in respect of the insurrectional movement but failed to do so – is clearly a

conduct attributable to the State

ii)unsuccessful or on going insurrectional movement

-not attributable to the state (treated on the same footing as that of persons or groups)

Home Missionary Society claim

CH – it is a well established principle of IL that no government can be held responsible for the act of

rebellious bodies of men committed in violation of its authority.

Conduct acknowledged and adopted by a state as its own

Article 11 – conduct which is not attributable to a state under the preceding articles shall be

considered an act of that state if the state acknowledges and adopts the conduct in question as its

own.

-this article refers to a situation where the conduct is not attributable to a state at the time of

commission but subsequently adopted and acknowledged by state as its own.

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United States Diplomatic and Consular Staff in Tehran case (subsequent adoption by a state of a

particular conduct)

1979 – several hundred student—demonstrator occupied the US Embassy in Tehran by force and

held the embassy staff as hostage. The court divided the event into two phases

1st stage – the attack was carried out by militants who in no way could be regarded as agents or

organs of the Iranian State – so the conduct of the militant could not be attributable to the state

2nd stage – started after completion of the occupation of the embassy. At this stage, the Iranian

Government was legally bound to bring an end the unlawful occupation and pay reparation. Instead,

it approved and endorsed the occupation and even issued a decree stating that the American

Embassy was a centre of espionage and the staff did not enjoy diplomatic immunity. The decree

further on saying that the embassy and the hostage will remain until the US hand over the former

Shah for trial. CH – The approval given to the act of the militant translated into the act of the state.

Conduct of private persons or entities

Private persons/entities – not state organs, not exercising element of governmental authority, not

acting as agent of the state – not attributable to the state

Eg : violance against foreigners or destruction of foreign properties by private individuals – not

attributable to state.

States will only be responsible for its own omission or inaction

GR – State will not be responsible for the act of private individual, but the act may be accompanied

by some omission on the part of the state

-it is responsible only if its own conduct by omission may be proved – there is failure to act in

conformity with the international legal standard. The state is responsible for the conduct (omission,

inaction, failure) of its own organ

Two forms of omission on the part of the state

a)failure to exercise due diligence

-state is responsible under IL if it fails to exercise “due diligence” to prevent private persons from

attacking foreign nationals, destroying foreign property

Asian Agricultural Products Ltd v Sri Lanka

British company brought an international action against Sri Lanka and claimed compensation for the

destruction of its Sri Lankan farm. The tribunal found that the farm was in an area that was under

the control of the Tamil Tiger rebels and that the farm management had offered to dismiss farm

staff thought to be in league with them. Neglecting this offer, the Sri Lankan Government forces

launched a counter-insurgency operation in that area causing the death of some company workers

and the farm was destroyed. CH – Sri Lanka was responsible because it violated its due diligence

obligation

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b)denial of justice

-state is responsible if it fails to punish responsible individual / to provide the injured foreign

national with the opportunity of obtaining compensation from the wrongdoers in the local court

Janes claim

Janes, an American citizen was murdered at a mine in Mexico. The person who killed Janes was a

well known person where the incident took place. There is evidence that a Mexican magistrate was

informed of the shooting within five minutes after it took place. However, even after 8 years hhad

elapsed, the murder had not been apprehended and punished by the Mexican authorities. CH – the

Mexico was responsible for the denial of justice

2.2 Breach of an international obligation

Article 12 – there is a breach of an international obligation by a state when an act of the state is not

in conformity with what is required of it by that obligation, regardless of its origin or character

“regardless of its origin” – all possible sources of international obligation

Rainbow Warrior case

Any violation by any state of any international obligation, of whatever origins, gives rise to state

responsibility and consequently , to the duty of reparation.

Inter-temporal law

Article 13 – an act of a state does not constitute a breach of an international unless the state is

bound by the obligation in question at the time the act occurs. (Island of Palmas case)

3) Defences (Circumstances precluding wrongfulness)

Even though a conduct is attributable to the state + inconsistent with international obligation =

responsibility will not follow for certain circumstances

State practise + international decision as codified in the ICJ provide for six circumstances

a)consent

Article 20 – valid consent by a state to the commission of the given act by another state precludes

the wrongfulness of that act in relation to the former state, to the extent that the act remains within

the limits of that consent.

-dalam normal circumstances, activities carried out will be prohibited by international law, but if

there is consent = preclude responsibilities.

Eg : consent to allow foreign troops on national territory, to allow aircraft to cross the airspace.

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Condition = consent must be valid (the person giving the consent must be authorised to do so,

conduct must be within the limit of the consent

b) Self-defence

Article 21 – the wrongfulness of an act of a state is precluded if the act constitutes a lawful measure

of self-defence in conformity with the UN Charter.

Article 51 – preserve a state’s inherent right of self-defence in the face of an armed attack

(so kalau state exercise right under Section 51, it is not in breach with Article 2 (4) which prohibits

the threat of use of force)

The legal consequence of the construction of wall in the Occupied Palestine Territory

c)Countermeasures

Embedded in Article 22

ICJ affirmed in the case of Gabcikovo-Nagymaros Project, countermeasures taken by a state in

response to an internationally wrongful act of another state are not wrongful acts, but are

recognised as valid means of self-help a long as certain conditions are respected.

Conditions for valid countermeasures are discussed in Article 23

Force majeure is defined under Article 23 (1) – the occurrence of an irresistible force or of an

unforeseeable event, beyond the control of the state, making it materially impossible in the

circumstances to perform the obligation

Rainbow Warrior case, France argued that urgency of medical treatment was the reason for

repatriation to France, without the consent of New Zealand, of a French agent, who was responsible

for the sinking of the vessel. They believed that those medical reasons amounted to force majeure.

But this claim was rejected when the tribunal stated that “the test for applying the doctrine of force

majeure was one of “absolute and material impossibility”. Circumstances rendering performance of

the obligation more difficult or burdensome did not preclude wrongfulness.

A state may not invoke force majeure if it has caused / produced the situation in question

Libyan Arab Foreign Investment Co v Republic of Burundi

The tribunal rejected a plea of force majeure because “the alleged impossibility was not the result of

an irresistible force, or unforeseen external event beyond the control of Burundi. In fact, the

impossibility is the result of a unilateral decision of that state.

d)Distress

Article 24 – situation where “the author of the wrongful act has no other reasonable way, in a

situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s

care

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Illustration by ILC – Unauthorised entry of an aircraft into foreign territory to save the lives of

passengers / entry of a military ship into a foreign port without authorisation due to storm.

Rainbow Warrior

France’s violation of the obligation to obtain the prior consent of New Zealand to the repatriation to

mainland France of Major Mafart was justified by distress involving medical considerations.

e)Necessity

Defined in Article 25 (1) as the condition where an unlawful act is performed and such act

a)is the only means for the State to safeguard an essential interest against a grave and imminent

peril

b)does not seriously impair an essential interest of the state / states towards which the obligation

exist, or of the international community as a whole

Torrey Canyon

Torrey Canyon, a Liberian oil tanker, had run aground on the high seas off the British coast in 1967.

Salvage operations were unsuccessful due to rough seas. To prevent further damage to the British

and French coasts and the pollution of the marine environment, the British bombed the vessel so

that the oil therein was burnt. The British Government invoked necessity and no other states

protested

Defences must not conflict with jus cogen

Eg : consent for foreign armed forces to enter the territory to massacre civilians of a specific ethnic

group will not be valid

4) Legal Consequences of an internationally wrongful act : Reparation

-the state responsible for the internationally wrongful act is under the obligation to cease that act (if

its continuing) and to offer appropriate assurance and guarantees of non-repetition.

-the state is under an obligation to make full reparation for the injury caused by the internationally

wrongful act

The World Court in the Factory at Chorzow case, specified the content of the obligation of

reparation in the following passage

“reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish

the situation which would not have existed if that act had not been committed.

Forms of reparation

Article 34 – full reparation for the injury caused by the internationally wrongful act shall take the

form of restitution, compensation and satisfaction, either singly or in combination

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-wiping out all the consequences may require some/all form of reparation depending on the type

and extent of injury

i)Restitution

Article 35 – means, to re-establish the situation which existed before the wrongful was committed ,

provided and to the extent that restitution

a)is not materially responsible

b)does not involve a burden out of all proportion to the benefit deriving from restitution instead of

compensation

-restitution in this narrow sense may have to be completed by compensation inn order to ensure full

reparation for the damage caused.

-restitution most closely conforms to the concept of reparation, so it comes first among the forms of

reparation. Supremacy of restitution is affirmed in the case of Factory at Chorzow.

-Restitution may take the form of material restoration (return of territory, persons, or property

Temple of Preah Vihear – the ICJ ordered Thailand to return to Cambodia religious objects it had

taken illegally from a temple in Cambodia.

ii) compensation

out of the various types of reparation – compensation is the most commonly sought in international

practise

I’m Alone case

The commissioners recommended the payment by the US of $25,000 as a material amend in respect

of the wrong committed by the US in sinking I’m Alone

iii) Satisfaction

Article 37 – satisfaction may consist in an acknowledgement of the breach, an expression of regret, a

formal apology or other appropriate modality

-refers to the case involving “moral” or “non-material” damages

Eg : situation of insult to the national flag, attack on ship or aircraft

-apology is the common form of satisfaction

-expression of regrets or apologies were required in the I’m Alone case, Rainbow Warrior

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5) The Treatment of Foreign Nationals

-once foreign nationals / companies are present in its territory, the State is under an international

obligation not ill treat them

-if the state violates this obligation, in any way, it may incur international responsibility to the state

of whom the person / company is the national

International minimum standard

-many states maintained that the treatment of foreign nationals is governed by an “international

minimum standard”

-every state must treat foreign nationals within its territory by reference to a minimum international

standard, irrespective of how national law allows that state to treat its own national

-the standard has enjoyed the support of many tribunals and claims commission such as in the Neer

Claim.

Mana nak guna? National or international minimum standard? – no consensus, caused problems in

the field of expropriation of foreign property. But more and more countries are ready to support the

international minimum standard

Examples of international minimum standard

Duty not to harm – the state and its organ have the legal obligation to refrain from harming foreign

nationals (Youmans claim)

Not to mistreat in lawful custody – in the Roberts claim, the Mexico US General Claim Commission

found that, although Roberts had been lawfully detained according to Mexican criminal law, his

treatment in prison and the length of detention before facing trial were unreasonable and below the

“ordinary standard of civilization”

Denial of justice

A state is responsible if an injury to an alien results a denial of justice

Eg : when there is denial, unwarranted delay / obstruction of access to court

-foreign nationals are entitled to full access to the court

Chattin claim

Mexico was held responsible for absence of proper investigation, undue delay of proceedings and

intentional severity of punishment.

Expropriation of foreign property

Definition : the deprivation by the State of foreign rights to property or its enjoyment

-can take various forms. The process may include

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*direct expropriation

-can take the form of confiscation or nationalisation

Confiscation = occurs when property is taken illegally / without compensation

Nationalisation = the taking of the property as part of a government economic or social programme

*indirect or creeping expropriation

Eg : forced sales of property, exercising management control over the investment, administrative

decisions which cancel license and permits necessary for the foreign business to function within the

state and exorbitant taxation

Exception : a state is not liable for economic injury which is a consequence of bona fide “regulation”

within the accepted police powers of states (so, economic measure such as non-confiscatory

taxation, exchange control regulation and currency revaluation do not normally result in

expropriation )

Legal requirements of a lawful expropriation

Opposing views between developed and developing countries – developed states maintained that

expropriation was only legitimate if it complied with the international minimum standard set by the

international law, the developing states denied this.

1962 – the General Assembly adopted Resolution 1803, Resolution on Permanent Sovereignty over

Natural Resources, it has been accepted in a number of arbitration awards as reflecting customary

international law . Two requirements of a lawful expropriation under the resolution are

Public purpose

Compensation

1974 – GA adopted the Charter of Economic Right and Duties of State – favours the view of

developing states

-does not mention on public purpose limitation. The resolution acknowledges that appropriate

compensation should be paid but what is appropriate is to be determined by the law of

expropriating state – so, compensation is likely to be narrow

What is clear is that , there are three proposed requirements namely

a)public purpose

most of the arbitral decisions support the view that to be lawful, an expropriation must have a public

purpose, a number of bilateral investment agreement also support this view

b)non discrimination

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Amoco case suggest that non discrimination is a condition of a lawful expropriation – but it is not an

absolute requirement, so does not reflect customary international law (resolution 1803 + 1974

charter mention about it)

c)compensation

-compensation is an essential requirement of a lawful expropriation

-According to the Hull formula – compensation is to be the full value of the property at the time of

the taking

-1974 Charter (presenting the views of the developing states) – what is appropriate is to be

determined by the law of the expropriating state and therefore, more likely to be very low

Reparation for an unlawful expropriation

Chorzow Factory case

The ordinary international law rules of state responsibility apply – “the remedy is restitution in kind

or if impossible, its monetary equivalent. Restitution will seldom be possible where an enterprise is

expropriated.

6) Invocation of the responsibility of a state

Once a state is said to be responsible of the breach of international obligation, the next step is what

the injured state may do, or what action they may take in order to secure the performance of the

obligation / reparation on the part of the responsible state.

ILC commentaries – invocation means taking measure

Eg : raising a claim, or commencement of proceeding against a state at the international tribunal

Invocation of responsibility by an injured state

Article 42 – a state is entitled as an “injured state” to invoke the responsibility of another state if the

obligation breached is owed to that state individually, or a group of states including that state or the

international community as a whole and the breach of obligation specially affects that state

Concept of the injured state – the state whose individual right has been infringed by the

internationally wrongful act / which has otherwise been particularly affected by that act.

A state injured in the sense of Article 42 – entitled to resort to all means of redress (can raise claim

against the state, commence proceeding)

Invocation of responsibility by other states : the concept of obligations erga omnes

Erga omnes – towards all

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Obligations erga omnes concerned with the enforceability of norms of international law, the

violation of which is deemed to be an offence not only against the state directly affected by the

breach, but also against all members of the international community.

Article 48 (1) – any state other than an injured state is entitled to invoke the responsibility of

another state in accordance with paragraph 2 if

The obligation breached is owed to the international community as a whole

The existence of the obligation erga omnes has been confirmed by the ICJ in Barcelona Traction,

Light and Power Co in these words

An essential distinction should be drawn between the obligations of a state towards the

international community as a whole, and those arising vis-a-vis another state in the field of the

diplomatic protection. By their very nature the former are the concern of all states. In view of the

importance of the rights involved, all states can be held to have a legal interest in their protection ,

they are obligation erga omnes.

Eg : outlawing of acts of aggression, and of genocides, principle and rules concerning basic rights of

the human person (protection from slavery and racial discrimination)

East Timor case – the court added the right of self-determination of peoples to the right

-Each state is entitled (as international community) to invoke responsibility of another state for

breach of obligation erga omnes (but invocation under Article 48 is limited as compared to

invocation by injured state.

Action that can be taken under Article 48 – focusing on the cessation of the internationally wrongful

act and assurance , guarantees of non-repetition.

Second type of claim – claim for the performance of obligation of reparation in the interest of the

injured state

The Law of diplomatic protection

Initial distinction has to be drawn between

Responsibility arising in the context of direct state to state wrongdoing

The responsibility arising in the context of diplomatic protection (injury to foreign nationals

or property)

Direct state to state responsibility

Problems which arise in the context of diplomatic protection (nationality of claim, exhaustion of

local remedies) do not arise in the context of state to state disputes.

-issue in these direct state to state cases is whether conduct attributable to a state (the breach of

obligation) – if so, responsibility is prima facie.

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State responsibility in the context of diplomatic protection

Ie injury to foreign nationals or their property – the questions of admissibility can be raised before

international tribunal.

ELSI case

US sought to base its action on breach of a bilateral treaty, the International Court stated that its

claim was in the nature of diplomatic protection of a national and was thus, subject to such

requirements as the exhaustion of local remedies.

The national state has the right under international law to extend diplomatic protection over its

nationals or corporations present in a foreign country. This is known as the right of diplomatic

protection.

ILC adopted Draft Articles on Diplomatic Protection in 2006. Article 1 provides that

Diplomatic protection consist of the invocation by a state, through diplomatic action / 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 national of the former

state with a view to the implementation of such responsibility

Admissibility of claim

Responsibility in the context of diplomatic protection (states’s nationals / companies) - admissibility

of claim plays a crucial role

Article 44 – two requirements need to be satisfied before a case is admissible to an international

court or tribunal.

1)nationality of claims

-claim against another state will fail unless it can be proved that the injured individual is a national of

the claimant state.

This nationality of claim rule is well established in customary IL

Paneveys-Saldutiskis case

CH- in the absence of a special agreement, it is the bond of nationality between the state and the

individual which alone confers upon the state, the right of diplomatic protection and it is the

function of the diplomatic protection to ensure the right to take up a claim and respect for

international rules.

Protection of natural person

-state can extend its protection to a natural person only when that person is its national.

-nationality is the term used to manifest the connection between a state and an individual

General rule – State can decide to define who its nationals

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Condition : the nationality law will be recognised by other state only if it is consistent with rules of

international law. What are the rules of international law?

Nottebohm case

Mr Nottebohm was born in Germany and had German nationality

1905 – He went to Guatemala, where he resided and conducted his business activities until 1934

1939 – he visited Liechtenstein to apply for naturalisation. After acquiring Liechtenstein nationality,

he went back to Guatemala. Later, Guatemala expelled and seized the property of Nottebohm.

Liechtenstein instituted proceeding against Guatemala. Guatemala argued that Liechtenstein could

not extend diplomatic protection to Nottebohm in a claim against Guatemala.

The ICJ observes that – nationality was a legal bond between the person and the State granting the

nationality and the recognition that the person was more closely connected with that state,

compared to other state.

The court found that – Nottebohm had been settled in Guatemala where he conducted his business

for almost 34 years and with that country he had a genuine connection and strong sentimental

attachment. The court did not find any close connection between Nottebohm and Liechtenstein.

CH – Liechtenstein was not entitled to extend its diplomatic protection to Nottebohm and claim was

inadmissible.

Principle in this case : The court refers to close connection / genuine link between the individual and

the state for the right of diplomatic protection (received criticism)

ILC in its Draft Article on Diplomatic Protection 2006 – did not require the establishment of genuine

link as a requirement of nationality (Nottebohm case should be limited to its facts alone)

Article 4 of the Draft Article provides that – for the purpose of the diplomatic protection of a natural

person, a state nationality means a state whose nationality that person acquired in accordance with

the law of that state, by birth, descent, naturalisation, succession of state/ in any other manner, not

inconsistent with international law.

ILC emphasised on the continuous nationality, Article 5 – the nationality must exist at the date of

injury and should continue until at least the date of the official presentation of the claim.

ILC makes a distinction between :

i)dual / multiple nationality and claim against a third state

exist when a natural person possesses dual/multiple nationality, any state which he is national may

exercise diplomatic protection in respect of that national against a third state

-no need to establish genuine link between the state nationality and the dual/multiple national

ii)dual / multiple nationality where one state of nationality makes a claim against another state of

nationality

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rule : the state with which the natural person has the more effective and dominant connection has

the right to exercise diplomatic protection

Article 7 of ILC Draft Articles on Diplomatic Protection 2006 – a state of nationality may not exercise

diplomatic protection in respect of a person against a state which that person is also a national

unless the nationality of the former state is predominant, both at the date of injury and at the date

of official presentation of the claim.

Merge claim

ILC ruled that the US shall be entitled to protect its national in cases of dual nationality, US and Italy,

whenever the US nationality is the effective nationality. In order to establish the prevalence of the

US nationality in individual case, habitual residence can be one of the criteria. Can also consider –

the conduct of the individual in his economic, social, political, civic and family life

Protection of legal persons (corporation)

-claim may also be made on behalf of corporations possessing the nationality of the claimant state

Barcelona Traction, Light and Power Co case

The company was established in Canada under the Canadian Law to develop electricity supplies in

Spain. In 1948, it was declared bankrupt by a Spanish court. Other steps injuring the company were

also taken by the Spanish authorities. Canada intervened on behalf on behalf of the company but

then withdrew. Belgium brought this claim in respect of the injury caused to its national, who were

shareholders, resulting from the injury of the company. Spain objected that since the injury was to

the company, not the shareholders. Belgium had not right to bring the claim.

Court rejected the Belgian claim on the ground that it did not have a legal interest in the matter.

Although shareholders may suffer if wrong is done to a company, it is the right of the company that

have been infringed. If the right of the shareholders were affected, then they would have an

independent action.

Principle in this case : the court denied under the CIL, of a inherent right for the national state of

shareholders in a foreign company to exercise diplomatic protection

Court accepted the existence of a right to protect shareholders in the two cases where

When the company is no longer in legal existence

Where the state in which the company is incorporated, itself causes the injury to the

company.

Article 9 of Draft Article on Diplomatic Protection 2006 – determining which state is the state of

nationality of a corporations

Article 11 – issue on whether national state of the shareholders may extend diplomatic protection or

not. Conditions

The corporation has ceased to exist

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The corporation had, at the date of injury, the nationality of the state alleged to be

responsible for causing the injury and incorporation in that state was required by it as a

precondition for doing business there

2)Exhaustion of local remedies

General rule : an injured national or legal person must exhaust local remedies in the state which

committed the international wrongful act, before it national state can bring the claim on its behalf.

However, if the injury is inflicted directly on a state (eg : when territory is invaded, diplomats are

attacked ) – no need to exhaust local remedies

Meaning of local remedies

Article 14 of the ILC on Draft Articles on Diplomatic Protection, 2006 defines local remedies – legal

remedies which are open to an injured person before the judicial or administrative courts or bodies,

whether ordinary or special, of the state alleged to be responsible for causing the injury

-foreign national must exhaust all the available judicial remedies provided for in the municipal law of

the respondent state

-kena go to the highest court to secure binding decision

-administrative remedies must also be exhausted.

General rule

Ambatielos arbitration

Ambatielos, a Greek ship owner contracted to buy some ships from the British Government and later

accused the British Government of breach of contract. In the litigation before the English High Court,

Ambatielos failed to call an important witness and lost : his appeal was dismissed by the Court of

Appeal. When Greece subsequently made a claim on his behalf, the commission of arbitration held

that Ambatielos failed to exhaust local remedies because he had failed to call a vital witness and

because he had failed to appeal from the Court of Appeal to the House of Lords.

Exception to the local remedies rule

Article 44 (b) - only those local remedies that are effective and available have to be

exhausted

Obvious futility test – if local remedies are obviously futile – rule does not apply

Finnish Ship Owners arbitration

Finland brought the claim to International Court. The UK objected on the ground that the

Finnish ship owners had not exhausted local remedies in the UK. The arbitrator rejected this

objection and ruled that Finland’ failure to appeal to the court of appeal did not mean that it

had not exhausted local remedies. Such an appeal would have been obviously futile because

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the Court of Appeal could not have reversed the board’s crucial finding of fact, it can only

consider question of law.

Lack of independent judiciary

Local remedies do not need to be exhausted when it is clear that the local court will not

provide redress for the injured individuals

Robert E Brown case

CH – the local remedies rule did not apply because it found that “all three branches of the

government of South African Republic conspired to ruin the claimant’s enterprise

Burden of proof – for the state claiming that local remedies have not been exhausted to show that

such remedies exist

Waiver of local remedies rule

State parties to a treaty can therein agree that the local remedies rule shall not apply to claims

based on alleged breaches of that treaty

Elettronica Sicula SpA (ELSI) case

The US argued that the doctrine did not apply since the case was brought under a treaty between

the two states which provided for the submission of disputes relating to the treaty to International

Court, with no mention of local remedies.

Countermeasures

ILC defined countermeasure as – non forcible measures taken by an injured state in response to a

breach of international law in order to secure the end of the breach and if necessary, reparation.

-Countermeasure may only be taken in response to an international wrongful act and only against

the state responsible for that act.

-countermeasures are limited to the temporary non performance of one/ some of the international

obligations of the injured state owed to the responsible state.

Eg of countermeasures – temporary non performance of a treaty obligation, the suspension of trade

agreement

Air Service arbitration

The arbitral tribunal found that the US retaliatory measure were permissible which were not

disproportionate to the violation done by France. The tribunal ruled that if a situation arises which in

one state’ view, results in the violation of an international obligation by another state, the first state

is entitled within the limit set by general rules of IL to the use of armed force (countermeasure)

Limitation (open for abuse)

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Countermeasure must be directed at the wrongdoer state only and with the aim of

compelling it to cease the wrongful act or to make reparation for it

Shall not involve the use of armed force

Shall not violate basic obligation under IL (Eg :protection of fundamental rights)

Shall not affect any dispute settlement procedure between two parties and inviolability of

diplomatic agents

Principle of proportionality must be complied with.

Naulilaa case – it was held that one should consider as excessive and therefore unlawful

countermeasure out of all proportion to the act motivating them

Procedural condition

The injured state is required to call on the responsible state to comply with its obligations

The injured state is required to notify the responsible state that it intend to take

countermeasure and to offer to negotiate with that state

If the responsible state ceased the wrongful act and the dispute is before a competent court

– no countermeasure

This condition does not apply if the responsible state fails to implement dispute settlement

procedures in good faith.