copyright and citation considerations of a thesis
TRANSCRIPT
I
COPYRIGHT AND CITATION CONSIDERATIONS OF A THESIS/ DISSERTATION
II
DIPLOMATIC PROTECTION IN THE JURISPRUDENCE OF THE INTERNATIONAL
COURT OF JUSTICE AND THE SOUTH AFRICAN LAW.
BY
NDUKA ESTHER AKWUGO
201112335
Dissertation presented in partial fulfillment of the requirement for the degree of
MASTERS IN INTERNATIONAL LAW
Supervised by Prof. H. Strydom
At the
FACULTY OF LAW
UNIVERSITY OF JOHANNESBURG
2013
III
DEDICATION
This work is dedicated to anyone who has ever left their country to a foreign country, especially those
who have been treated unjustly just because he or she is a foreigner in a particular country. There is a
saying that 'there is no place like home'.
IV
ACKNOWLEDGEMENT
I would like to express my sincere gratitude to my Lecturer and Supervisor Prof. H. Strydom for
all the useful comments, remarks and assistance throughout the time of my study and in doing
this work. I will also like to thank the Staff members of the Law Faculty especially Mrs. Van
Wyk for their unreserved assistance during my work. The University Library Staff were also of
immense help.
I will always be indebted to my lovely family, especially my husband, for all their support and
encouragement throughout the duration and completion of this work. I thank and love you all.
Above all I thank the Almighty God for His grace and strength that He constantly showers on
me. I could not have achieved this much without you.
V
Contents INTRODUCTION ................................................................................................................................... 6
Definition ......................................................................................................................................... 7
What is Diplomatic Protection? ........................................................................................................ 8
CHAPTER ONE – GROWTH AND DEVELOPMENT ................................................................................... 9
1.1 Introduction ......................................................................................................................... 9
1.2 Historical Development ........................................................................................................ 9
CHAPTER TWO - NATIONALITY ISSUES ............................................................................................... 19
2.1 Introduction ....................................................................................................................... 19
2.2 Key Issues Relating to Nationality ....................................................................................... 19
2.3 Right to Diplomatic Protection ........................................................................................... 28
CHAPTER THREE – THE LOCAL REMEDY RULE ..................................................................................... 37
3.1 Introduction ....................................................................................................................... 37
3.2 The Scope of Local Remedy Rule ........................................................................................ 37
CHAPER FOUR – TREATMENT OF ALIEN ............................................................................................. 42
4.1 Introduction ....................................................................................................................... 42
4.2 Standard of Treatment of Aliens ......................................................................................... 42
4.3 Expulsion of Aliens ............................................................................................................. 44
4.4 Consular Protection ............................................................................................................ 46
4.5 Expropriation of Foreign Property ...................................................................................... 49
CONCLUSION ..................................................................................................................................... 53
BIBLIOGRAPHY ................................................................................................................................... 55
6
INTRODUCTION
This thesis is based on the jurisprudence of the International Court of Justice viz a viz the South
African law and practices as it relates to diplomatic protection of nationals or corporate entities
who encounter problem with the law in a foreign country.
How the concept of diplomatic protection has assisted individuals and corporate entities who
wish to go to a foreign country for whatever reason to feel free and relaxed knowing that their
lives and property are protected.
The expose examines the rights of individuals to diplomatic protection in international law in
comparison with the rights of nationals to request for diplomatic protection in South Africa.
The questions posed are; what is the liability of the state to its nationals, what level of
responsibility is to be exhibited by the state when providing diplomatic protection and do such
nationals have a right to demand to be protected in international law and or municipal law.
Chapter one will examine the growth and historical development of diplomatic protection and
the position as it is today.
Chapter two will deal with nationality issues, this is because to determine who will be the
beneficiary of diplomatic protection nationality must first be determined. The issues to be
discussed in this chapter are: acquisition of nationality, double or multiple nationalities,
continuity of nationality, loss of nationality, nationality of a Corporation and its shareholders,
stateless persons and refugees, and the right to diplomatic protection.
In answering the question of state responsibility, chapter three will examine the local remedy
rules. This is because local remedies will have to be exhausted before the state can intervene.
7
Chapter four will examine the treatment of alien which include expulsion of alien, expropriation
of foreign property, and consular protection.
Various attempts have been made to define Diplomatic protection, but there has not been a
generally accepted definition. Some of these definitions are highlighted below. A description is
also provided below to help with the understanding and scope of diplomatic protection.
Definition
Joseph Cuthbert in his book defined diplomatic protection as “a procedure for giving effect to
state responsibility involving breaches of international law arising out of legal injuries to the
person or property of the citizen of a state”.1
The 2006 Draft Articles on Diplomatic Protection defines diplomatic protection as “consisting of
the invocation by a state, through diplomatic action or other means of peaceful settlement, of the
responsibility of another state for an injury caused by an internationally wrongful act of that state
to a natural or legal person that is a national of the former state with a view to the
implementation of such responsibility”.2
Dugard in his book, International Law A South African Perspective refers to diplomatic
protection as an „indirect state responsibility‟. He describes indirect state responsibility as a
situation which “occurs when a state injures the person or property of a foreign national within
its territory. It incurs responsibility because of its failure to treat the foreign national according to
the minimum standard of justice required for the treatment of aliens.3
1 Cuthbert National and Diplomatic protection (1969) 1.
2 Art. 1 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006.
3 Dugard International Law A South African Perspective (2011) 281.
8
In my humble opinion, diplomatic protection is an indirect responsibility of one State to the other
where the rights of one of its nationals or corporate entity is being violated by another State
when in that other State.
What is Diplomatic Protection?
When an individual travels to a foreign country for whatever reason, and encounters problem
with the law of that country, he or she has a right to be protected by his or her own home state
through the home state consulate. A state is therefore entitled as of right to protect its nationals
abroad. This means that a state has the right to ensure that another state treats its own nationals in
accordance with binding treaties between the states or where there is no treaty, that foreign
nationals are treated with the minimum standards laid down in customary international law. In
case of a violation of this right, a state has to take into consideration several factors such as
whether the individual was informed of his or her right to notification and access to the home
state consulate in that foreign country as provided for under Article 36(1)(b) of the Vienna
Convention on Consular Relations; whether the national has exhausted the local remedies
available; whether the national can satisfy the nationality of claims rule; whether pursuing the
case would be in the interest of that State etc. Apart from natural persons, legal entities can also
enjoy diplomatic protection. It is therefore safe to say that the state can decide to take action to
protect its nationals, but has no legal duty to do so. The International Court of Justice in the
Barcelona Traction Case stated that: “By emphasizing the absence of any express denial of the
right conversely implies the admission that there is no rule of international law which expressly
confers such a duty on the State”. 4
4 Barcelona Traction case (2
nd phase) 46 ILR 178(1970) 211.
9
CHAPTER ONE – GROWTH AND DEVELOPMENT
1.1 Introduction
This chapter will examine the origin and the traditional concept of diplomatic protection, the
growth and development of the doctrine through cases as decided by the International Court of
Justice and the position as it stands today.
1.2 Historical Development
The writing of the Swiss Juris Emmerich de Vattel in 1758, on diplomatic protection, was the
origin of the doctrine. He formulated the theory on the right of a state to protect its citizens who
have suffered injury abroad.5
“Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this
citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor,
and, if possible, oblige him to make full reparation; since otherwise the citizen would not
obtain the great end of the civil association, which is, safety”.6
The traditional concept of diplomatic protection was such that only states and not individuals
were subjects under international law. Diplomatic protection is seen as a right of the state and not
of the individuals who have been wronged under international law. An injury to an alien is
considered to be an indirect injury to his home state and in taking up his case the state is seen as
asserting its own rights. In the Mavrommatis Palestine Concessions Case of 1924, the
International Court of Justice stated that: “By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights-its right to ensure in the person of its subjects respect for the rules
of international law”.7
5 Borchard The Diplomatic Protection of Citizens Abroad or The Law of International Claims (1915) 351.
6Vattel Law of Nations 1758 (Book II) Chap. VI (English Translation). Accessed from http:// earthlink.net/-
dybel/Documents/lawofnations,vattel.htm on 17th
April, 2012 at 11:53. 7 Mavrommatis Palestine Concessions Case (Greece v. United Kingdom) PCIJ Reports, Series A, No 2 (1924) 12 as
cited by Dugard International Law A South African Perspective (2011) 281. This was repeated in Panevezys
10
The above principle from the Mavrommatis Case, as stated by Amerasinghe in his book, is
“apparently derived from the inadequate theory that States alone are subjects of international
law”.8 But this traditional principle on the law of treatment of aliens and diplomatic protection
has continuously been addressed and debated over the years in different cases. This was due to
the unclear rights of individuals in international law and the implication of human rights for the
purposes of diplomatic protection. Different cases will be addressed below to determine if the
Mavrommatis Principle is still effective today or whether there is a progression or a change from
this principle.
In the Nottebohm Case of 1955,9 Mr. Nottebohm was born in 1881 in Germany. He later
migrated to Guatemala in 1905 where he established a successful business, a family and his
social life. He sparingly visited Germany but his business, family and his social life were in
Guatemala. While on a visit to Liechtenstein in 1939, he obtained Liechtenstein nationality
fearing that Guatemala may declare war on Germany. The three year resident condition for
granting nationality was waived. He then returned home to Guatemala. In 1945, Guatemala did
declare war on Germany, Nottebohm was arrested as a result of war measures; his property
confiscated and he was prohibited from re-entering Guatemala after the war. Liechtenstein then
instituted an action against Guatemala on Nottebohm‟s behalf in 1951, claiming compensation
from Guatemala for violating their obligation to Liechtenstein under international law by
confiscating Nottebohm‟s property without compensation, arresting, expelling and refusing him
entry into Guatemala.
The issue before the International Court of Justice was the admissibility of the claim by
Liechtenstein in respect of Nottebohm. To decide upon this admissibility, the court must
ascertain whether the nationality conferred on Nottebohm by Liechtenstein by way of
naturalization can be validly invoked against Guatemala and whether Liechtenstein has a
Saldutiskis Railway Case (1939) 9 ILR 308 at 309. Also the Commentary to Article 1 of the international Law Commission’s Draft Article on Diplomatic Protection, 2006. 8 Amerasinghe State Responsibility for Injuries to Aliens (1967) 56.
9 Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349.
11
sufficient title to the exercise of protection in respect of Nottebohm. The Court before addressing
this issue recognized that diplomatic protection constitutes measures for the defense of the right
of the state as was established in the Mavrommatis Palestine Concession Case by stating that:
“by taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to
ensure, in the person of its subjects, respects for the rules of international law”.10
In determining the issue of Nottebohm‟s nationality, the Court, noted that: “It is for
Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating
to the acquisition of its nationality, and to confer that nationality by naturalization granted by its
own organs in accordance with that legislation”.11
But there must be in existence a connection or
a link between the state and the person of which nationality is to be granted.
“[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine
connection of existence, interests and sentiments, together with the existence of
reciprocal rights and duties. It may be said to constitute the juridical expression of the
fact that the individual upon whom it is conferred, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the population of
the State conferring nationality than with that of any other State”.12
Factors that may be considered as constituting genuine connections are: the habitual residence of
the individual, centre of his interest/business, family ties, participation in public life, attachment
to the country etc.13
The Court had to determine whether there is an existence of a factual connection between
Nottebohm and Liechtenstein so that it may be said to be sufficient and preponderant to any
other connection he may have with any other state. The Court noted that as at the time he applied
for naturalization in Liechtenstein, he was still a German national living in Guatemala and had
carried on his activities there for 34 years. The connection he had with Liechtenstein was an
10
Ibid at 360. 11
Ibid at 357. 12
Ibid at 360. 13
Ibid at 359.
12
extremely tenuous one. He had no home and never resided in Liechtenstein for a prolonged time.
In fact, he was only visiting the country when the application was made. He had no intention to
settle in Liechtenstein even after the nationality was granted to him.
“These facts clearly established, on the one hand, the absence of any bond of attachment
between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-
standing and close connection between him and Guatemala, a link which his
naturalization in no way weakened. That naturalization was not based on any real prior
connection with Liechtenstein, nor did it in any way alter the manner of life of the person
upon whom it was conferred in exceptional circumstances of speed and accommodation.
In both respects, it was lacking in the genuineness requisite to an act of such importance,
if it is to be entitled to be respected by a State in the position of Guatemala. It was
granted without regard to the concept of nationality adopted in international relations”.14
In the Barcelona Traction Judgment of 1970,15
Barcelona Traction, Light and Power Company
Limited, was a holding company incorporated and with its head office in Toronto, Canada. For
the purpose of creating and developing an electric power production and distribution system in
Catalonia (Spain), the company formed a number of operating, financing and concession holding
subsidiary companies. Three of these subsidiary companies, whose shares it owned wholly or
virtually wholly owned (Ebro Irrigation and Power Company Limited, Catalonian Land
Company Limited, and International Utilities Finance Corporation Limited) were incorporated
under Canadian law with their registered offices in Canada. Other subsidiary companies had
their registered offices in Spain. The National Trust Company Limited in Toronto acted as
trustee for several Sterling bonds secured by trust deed. The security consisted of a charge on
bonds and shares of Ebro and other subsidiaries and of a mortgage executed by Ebro in favor of
National Trust. The Sterling bonds were serviced out of transfers to Barcelona Traction made by
the subsidiary companies operating in Spain. The servicing of the bonds was suspended in 1936
owing to the Spanish Civil War. Authorization by the Spanish exchange control authorities for
14
Ibid at 362-3. 15
The Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain) (Preliminary Objections) (1964) 46 ILR 1.
13
the transfer of the foreign currency necessary for servicing the bonds was refused, and interest
payments on them was never resumed. On the 9th
of February, 1948, three Spanish holders who
recently acquired Barcelona Traction Sterling Bonds petitioned the Court of Reus, Taragona, for
a declaration; adjudging the company bankrupt on account of failure to pay interest on their
bond. A judgment declaring the company bankrupt was given on 12th
February of the same year.
A commissioner in bankruptcy and an interim receiver was appointed. Seizure of the assets of
Barcelona Traction, Ebro and Compania Barcelona de Electricidal (another subsidiary) was
ordered. Since the shares of Ebro and Barcelona had been deposited with the National Trust
Company in Toronto as security for the bonds issued, the possession of these shares was
„mandate and constructive civil possession‟-not physical possession. The commissioner in
bankruptcy dismissed the principal management personnel of the two companies and the interim
receiver appointed Spanish directors and declared the companies back to normal. These
measures were extended subsequently to other subsidiaries. The Barcelona Traction, National
Trust, the subsidiaries and their directors brought proceedings in Spain contesting the bankruptcy
judgment.
In the second phase of the case,16
the Belgian government claimed that Barcelona Traction‟s
share capital was held by Belgian individuals or corporate bodies although a large block of the
shares was transferred to United States nominees and trustees, but that Belgian nationals
continued to be the real owners. The Belgian government in 1962 filed with the International
Court of Justice an application against the Spanish government praying for reparation of damage
allegedly caused to Barcelona Traction. One of the objections raised by the Spanish government
was that the Belgian government lacked any jus standi to intervene or make a judicial claim on
behalf of its nationals in a Canadian company.
The Court observes that within the limit of international law:
“[A] State may exercise diplomatic protection by whatever means and to whatever extent
it thinks fit, for it is its own right that the State is asserting. Should the natural or legal
persons on whose behalf it is acting considers that their rights are not adequately
16
Barcelona Traction, Light and Power Company Limited (Second Phase) (1970) 46 ILR 178.
14
protected, they have no remedy in international law. All they can do is to resort to
municipal law, if means are available, with a view to furthering their cause or obtaining
redress”.17
The Court also noted that traditionally, rights to diplomatic protection of a corporation are
attributed to a state where it is incorporated and where it has its registered office. But that there
are other links that may be considered: “… when it has its seat (siege social) or management or
centre of control [is in a particular] territory, or when a majority or a substantial proportion of the
shares has been owned by nationals of a State concerned … [This is known as] a genuine
connection, … [but] no absolute test of the genuine connection has found general
acceptance…”.18
In the LaGrand Case (Germany v. United States),19
two brothers Walter and Karl LaGrand of
German nationality, were tried, convicted and sentenced to death for murder in 1982 in Arizona.
They were not informed by the authorities of their right to consular access under the 1963
Vienna Convention on Consular Relations. On the 24th
February, 1999, Karl LaGrand was
executed. On 2nd
of March, 1999, the day before the scheduled execution of Walter LaGrand,
Germany instituted proceedings before the International Court of Justice against the United
States of America for not complying with the provisions of S 36 of the Vienna Convention. The
application was accompanied by a request for provisional measures of protection, including a
stay of execution of Walter LaGrand pending the decision of the Court on the merits. The Court
ordered provisional measures on 3rd
March, 1999 as requested by Germany. The request to stay
the execution of Walter LaGrand was refused. Walter LaGrand was consequently executed on
the same day.
Some of the issues contended by Germany were:
1. The United States by not informing Karl and Walter LaGrand, without delay
following their arrest, of their rights under Article 36, paragraph 1(b), of the Vienna
Convention on Consular Relations, and by depriving Germany of the possibility of
17
Ibid at 218 Para 78. 18
Ibid at 216 Para 70. 19
LaGrand Case (Germany v. USA) 134 ILR 1 (2001) 59
15
rendering consular assistance, which ultimately resulted in the execution of the
LaGrands violated international legal obligations to Germany in its own right and in
its right of diplomatic protection of its national.
2. The United States, by applying the rules of its domestic law, in particular the doctrine
of procedural default, which barred the LaGrands from raising their claim under the
Vienna Convention on Consular Relations and by ultimately executing them, violated
its international legal obligation to Germany under Article 36, paragraph 2, of the
Vienna Convention to give full effect to the purposes for which the rights accorded
under Article 36 of the Vienna Convention are intended.
3. “The United States, by failing to take all measures at its disposal to ensure that Walter
LaGrand was not executed pending the final decision of the International Court of
Justice on the matter, violated its international legal obligation to comply with the
order on provisional measures issued by the court on 3 March 1999, and to refrain
from any action which might interfere with the subject matter of the dispute while
judicial proceeding are pending;”20
etc.
On the first issue, Germany contended that (1) the failure of the United States to inform the
LaGrands of their right to contact German authorities prevented Germany from exercising its
rights under Article 36, paragraph 1(a) and (c), of the Vienna Convention, which violates the
various rights conferred upon the sending state vis a vis its nationals in prison, custody or
detention as provided for by Article 36, paragraph 1(b), of the Convention. (2) The United States
also violated individual rights conferred on the LaGrands by virtue of Article 36, paragraph 1(a).
The Court held that the breach by the United States had the consequence of depriving Germany
of the exercise of the rights accorded to it under Article 36, paragraph 1(a) and (c), and
constituted a violation of the provisions of the Convention.
“It follows that when the sending State is unaware of the detention of its nationals due to
the failure of the receiving State to provide the requisite consular notification without
20
Ibid at 4.
16
delay, … the sending State has been prevented for all practical purposes from exercising
its rights under Article 36, paragraph 1”.21
On the issue of whether Article 36, paragraph 1(b), created individual rights, Germany alleges
that Article 36, paragraph 1(b), created individual rights and that such rights are to be regarded as
human rights. The Court notes that Article 36, paragraph 1(b), spells out obligations the
receiving state has towards both the detained person and the sending state, and concludes that
Article 36, paragraph 1, creates individual rights but the Court was silent on whether such rights
have assumed the character of a human right.22
On the second issue of procedural default, the Court makes a distinction between the rule itself
and its application in the present case; the rule itself does not violate Article 36 of the Vienna
Convention. The problem arises where the rule of procedural default does not allow the detained
individual (the LaGrands) to challenge a conviction and sentence.
“Germany had the right at the request of the LaGrands, to arrange for their legal
representation … [but b]y that time, however, because of the failure of the American
authorities to comply with their obligation under the Article 36, paragraph 1(b), the
procedural default rule prevented counsel for the LaGrands from effectively challenging
their convictions and sentences other than on United States constitutional grounds. As a
result, although United States Courts could and did examine the professional competence
of counsel assigned to the indigent LaGrands by reference to United States constitutional
standards, the procedural default rule prevented them from attaching any legal
significance to the fact, inter alia, that the violation of the right set forth in Article 36,
paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for
them and otherwise assisting in their defense as provided by the Convention. Under these
circumstances, the procedural default rule had the effect of preventing full effect … given
to the purposes for which the rights accorded under this Article are intended…”.23
21
Ibid at 31 Para 74. 22
Ibid at 33 Para 77-8. 23
Ibid at 36 Para 91.
17
On the third issue, the Court examined Article 41 (1) of the Statute of the Court and Article 31 of
the 1969 Vienna Convention on the Law of Treaties and decided that:
“…the power to indicate provisional measures entails that such measures should be
binding, inasmuch as the power in question is based on the necessity, when the
circumstances call for it, to safeguard, and avoid prejudice to, the rights of the parties as
determined by the final judgment of the Court”.24
In the Avena case,25
Mexico initiated proceedings at the International Court of Justice against the
United States of America on the 9th
of January 2003, alleging a breach of Article 36, paragraph
1(b) of the Vienna Convention on Consular Relation. The proceedings were in respect of over
fifty Mexican nationals who have been convicted and sentenced to capital punishment in
different states in America. Mexico also prayed for the Court to determine provisional measures,
asking the United States to take all necessary measures to ensure that no Mexican national will
be executed pending the final judgement of the Court. The International Court of Justice took the
same approach as in the LaGrand Case and found that the United States had breached its
obligation provided for under Article 36, paragraph 1(b) of The Vienna Convention against
Avena and other Mexican nationals and the Mexican State. Hence Avena and the others were
entitled to a review and reconsideration of their convictions and sentences.26
It is evident therefore that from the rulings of the International Court of Justice in the LaGrand
Case and the Avena Case that there is a progression or a rapid change from the traditional
position laid down in the Mavrommatis Case to a new position in international law which
recognizes individual rights and not just state rights. But it is not clear if this right has
transformed into a human right.
24
Ibid at 41 Para 102. 25
Case Concerning Avena and Other Mexican National (Mexico v. USA) (2004) 134 ILR 95. 26
Ibid at 136.
18
19
CHAPTER TWO - NATIONALITY ISSUES
2.1 Introduction
“Nationality is the principal link between individuals and international law”,27
“it is essentially a
term of international law and denotes that there is a legal connection between the individual and
the state for external purposes”.28
This function of nationality becomes apparent with regard to
individuals abroad. A state therefore has a right of protection over its nationals abroad, every
state holds this right and occasionally exercises such right against other states in case of an
injury to one of its national.29
As stated in Nottebohm’s case, “nationality is a legal bond having
as its basis a social fact of attachment, a genuine connection of existence, interest and sentiment,
together with the existence of reciprocal rights and duties. It may be said to constitute the
juridical expression of the fact that the individual upon whom it is conferred, either directly by
the law or as a result of an act of the authorities, is in fact more closely connected with the
population of the State conferring nationality than with that of any other State”.30
This chapter
seeks to look at these nationality issues and to determine the rules guiding them: acquisition of
nationality, double or multiple nationality, continuity of nationality, loss of nationality,
nationality of corporation and its shareholders, the fate of stateless persons and refugees and
finally the right to diplomatic protection.
2.2 Key Issues Relating to Nationality
2.2.1 Acquisition of Nationality
Although it is the right of a state to determine the rules guiding the acquisition of its nationality,
it is international law which determines whether such acquisition is acceptable: “International
law may refuse to recognize nationality for the purposes of diplomatic protection.”31
In the
Nottebohm’s Case, the Court stated that:
27
Oppenheim International Law Jennings and Watts (eds.) 1992 at 857. 28
Dugard International Law A South African Perspective (2011) 282. 29
Oppenheim International Law Jennings and Watts (eds.) 1992 at 857. 30
Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349 at 360. 31
Dugard International Law A South African Perspective (2011) 284.
20
“…a State cannot claim that the rules it has … laid down are entitled to recognition by
another State unless it has acted in conformity with this general aim of making the legal
bond of nationality accord with the individual‟s genuine connection with the State which
assumes the defence of its citizens by means of protection as against other States”. 32
Nationality is governed by the municipal laws of states.33
Hence different states in their national
law stipulate how and when a person becomes a national. It is for each state to determine under
its own law who are its nationals and such a law shall be recognized by other states provided that
it is consistent with international conventions, international customs and the principles of law
generally recognized with regard to nationality.34
“In practice, the domestic laws of States tend to
base nationality on birth in the territory of the State (Jus soli), on descent from nationals of the
State (Jus Sanquinis), or both. Nationality may also be acquired after birth in many states
through naturalization”.35
Common law countries like the United Kingdom adopted the jus soli
rule. According to the British Nationality Act, 1981, a person born within the United Kingdom
and its Colonies… shall be a citizen of the United Kingdom and Colonies.36
In South Africa
nationality by birth is not automatic. S 2 of the South African Citizenship Act provides for
citizenship by birth but at least one of the parents must be a South African.37
There are
exceptions to the jus soli rule in the United Kingdom to the effect that children of diplomats who
are born within the United Kingdom do not automatically acquire United Kingdom‟s
nationality.38
Nationality through naturalization usually requires that the alien must have resided in that
country for a number of years before nationality can be acquired. Conditions required for this
vary from country to country.39
32
Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349 at 359 – 360. 33
Shaw International Law (2008) 660. 34
Article 1 of the 1930 Hague Convention on the Conflict of Nationality laws. 35
Currie, Forces, Osterveld International Law: Doctrine, Practice and Theory (2007) 453.
36 S1 British Nationality Act, 1981.
37 South African Citizenship Act 88 of 1995 as amended.
38 Article 12 of the Convention on Certain Questions Relating to the Conflict of Nationality Law, 1930.
39 Shaw International Law (2008) 662.
21
Nationality may also be acquired by marriage. Wives of nationals can acquire the nationality of
their husbands but the position varies from country to country. In some countries, acquisition
may be automatic or based on conditions which must be fulfilled. While in some countries,
marriage has no effect on the nationality of the woman.40
According to the Convention on the
Nationality of Married Women, 1957, marriage does not automatically affect the nationality of
the woman. “Each Contracting State agrees that neither the celebration nor the dissolution of a
marriage between one of its nationals and an alien, nor the change of nationality by the husband
during marriage, shall automatically affect the nationality of the wife”.41
Diplomatic protection can only be extended to the nationals of the state concerned. It cannot be
extended to an alien or a foreigner. In the European Union, diplomatic protection can be
extended to a person of any other member state where his or her state of origin does not have a
diplomatic representation in a third state.42
Article 4 of the International Law Commission‟s Draft Article on Diplomatic Protection provides
that:
“For the purposes of the diplomatic protection of a natural person, a State of nationality
means a State whose nationality that person has acquired, in accordance with the law of
that State, by birth, descent, naturalization, succession of States, or in any other manner
not inconsistent with international law”.
This provision does not require a state to prove that there is an effective or genuine link between
the state and the national it intends to protect, as long as such conferment of nationality is not
inconsistent with international law. The International Law Commission was “mindful of the fact
that if the genuine link requirement proposed by the Nottebohm‟s case was strictly applied, it
would exclude millions of persons from the benefit of diplomatic protection as in today‟s world
of economic globalization and migration there are millions of persons who have moved away
40
Ibid. 41
Article 1 of the Convention on the Nationality of Married Women, 1957. 42
Article 20 of the Treaty Establishing the European Community, 2002.
22
from their State of nationality and made their lives in States whose nationality they never acquire
or have acquired nationality by birth or descent from States with which they have tenuous
connection”.43
2.2.2 Double or Multiple Nationalities.
Due to the problem of conflict of laws and lack of uniformity in relation to nationality, people
have ended up with more than one nationality. For instance, where a child is born in a country
that recognizes jus soli and his parents are from another state which recognizes jus sanquinis,
that child will ultimately have a dual nationality through birth and by virtue of being a
descendant of his parents. Another instance is where a woman marries someone who is of a
different nationality. She may keep or retain her nationality according to the laws of her country
and is also able to obtain the nationality of her husband. Dual nationality can also arise where a
person naturalizes in one state, but does not lose the nationality of his/her home state.44
South
Africa is against the recognition of dual or multiple nationalities in situations where: a) The
citizen enters or departs from the country using another country‟s passport. b) Where the citizen
intends to use another country‟s passport to gain an advantage or avoid a responsibility or duty.45
Article 5 of the 1930 Hague Convention on the Conflict of Nationality Laws provides that in
relation to a third state, a person with dual nationality shall be treated as if he had one nationality
and such third state shall recognize :-
(a) The nationality of the country in which he is habitually and principally resident;
(b) The nationality of the state with which he appears to be in fact most closely
connected.
The provision of this Convention gives rise to the effective nationality principle or effective link
principle.46
The International Law Commission‟s Draft Article on Diplomatic Protection
provides that where a person has dual nationality, the two states of which that person is a
43
Commentary to Article 4 of the International Law Commission’s Draft Articles, 2006. 44
O’Connell International Law (1965) 746; Oppenheim International Law Jennings and Watts (eds.) 1992 at 883; Green International Law (1987) 97. 45
S 26B, South African Citizenship Act 17 of 2004 (As amended). 46
Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349 at 360.
23
national of can actually jointly exercise a right over the national. Article 6 of the Draft article
provides for multiple nationality and claims against a third state;
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 person is not a national.
2. Two or more states of nationality may jointly exercise diplomatic protection in respect of
a dual or multiple nationalities.
Article 4 of the 1930 Hague Convention on the Conflict of Nationality Laws also provides that 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. But article 7 of the International Law Commission‟s Draft
Articles on Diplomatic Protection provides for an exception where the former state is
predominant, both at the date of injury and at the date of the official presentation of the claim.47
2.2.3 Continuity of Nationality
Article 5 of the International Law Commission‟s Draft Articles on Diplomatic Protection
provides that for a state to be able to exercise diplomatic protection in respect of a person, that
person must have been a national continuously from the date of the injury to the date of the
official presentation of the claim. Continuity is presumed if the nationality existed at both these
dates. This provision has been subjected to a lot of criticism on the ground that it will lead to
great hardship in a situation where the change of nationality is not warranted by the diplomatic
protection claim.
Article 5(2) provides for exceptions to this rule. It states that a state may exercise diplomatic
protection 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 date of the injury, provided that the person had the nationality
of a predecessor state or lost his or her previous nationality and acquired, for reasons unrelated to
the bringing of the claim, the nationality of the former state in a manner not inconsistent with
international law. The loss of the nationality in this case could be involuntary (succession of
states, marriage or adoption) or voluntary. In which case, change of nationality must not be
warranted by the diplomatic protection claim. While Article 5(4) provides that a state will not be
47
Merge Claim (1955) 22 ILR 564.
24
entitled to exercise diplomatic protection in respect of a person who acquires the nationality of
the state against which the claim is brought after the date of the official presentation of the claim.
The respondent state will then be required to compensate its own national.
2.2.4 Loss of Nationality
There are circumstances where a state may withdraw the nationality of an individual or the
individual on his/her own volition may decide to reject the nationality of a particular state and
assume the nationality of another state. States are required to produce circumstances in which
nationality may be withdrawn automatically like through acquisition of a new nationality,48
by
naturalization or where a person who has an option to take up nationality at a certain age refuses
to register with the consul.49
A person may also lose his or her nationality through his own action
through renunciation or by declaration of lineage upon coming of age.50
A state may also deprive
a person of his or her nationality as “penalty for commission of a crime or refusal to perform
military service or a policy measure designed to detach certain classes of person‟s, example
residents abroad, religious or racial minorities within the country.51
2.2.5 Nationality of a Corporation and its Shareholders
As discussed above, nationality is guided by the municipal law of states. The same also applies
to nationality of corporations.52
For instance the United Kingdom recognizes the nationality of
the state of incorporation (siege social), Italian law recognizes the principle place of business of
the corporation (centre d‟exploitation), or the central control (siege reel) which is also practiced
by other states. Due to this, corporations may also have double or multiple nationalities.53
The
application of municipal laws becomes a problem where there is a dispute in a company with the
nationality of a particular country but its major shareholders are of another nationality with no
binding treaty as to how disputes will be resolved.54
The Draft Articles on Diplomatic Protection
48
Article 6(1)(a) of South African Citizenship Act 88 of 1995 amended in 2004. 49
Green International Law (1987) 96. 50
ibid 51
O’connell International Law (1965) 742. 52
Barcelona Traction Case (2nd
phase) 46 ILR 178 (1970) 211.
53 Oppenheim International Law Jennings and Watts (eds.) 1992 at 859-864, Green International Law (1987) 98-
102. 54
Barcelona Traction Case (2nd
phase) 46 ILR 178 (1970) 211.
25
tries to alleviate this problem. Article 9 provides that the state of nationality means the state
under whose law the corporation was incorporated. The article also provides for situations where
the corporation was incorporated in one state but has its principal place of business in another
state. For such a state to claim nationality of the corporation, there must be another significant
link other than the place of incorporation. Therefore when a certain significant connection exists
with another state other than the state of incorporation, that other state becomes the state of
nationality.
“… Policy and fairness dictate such a solution. It is wrong to place the sole and exclusive
right to exercise diplomatic protection in a State with which the corporation has the most
tenuous connection as in practice such a State will seldom be prepared to protect such a
corporation”.55
Such significant links as mentioned above must include cumulatively all the following:
a. The corporation must be controlled by nationals of another state,
b. It must have no substantial business activities in the state of incorporation, and
c. Both the seat of management and the financial control of the corporation must be located
in another state.56
The International Law Commission‟s Draft Article on Diplomatic Protection also made
provisions for situation where the state of nationality of a corporation may be the nationality of
the shareholders. These situations are:
1. Where the corporation has gone into liquidation.57
2. Where the injury was caused by the state of incorporation and the only means of getting
protection is from the shareholders own state.58
55
Commentary to Article 9 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006. 56
Ibid. 57
The International Law Commission’s Draft Article on Diplomatic Protection (2006) Article 11 (a). 58
Ibid at Article 11 (b).
26
3. Where the injury is directly to the shareholders which is different from the right of the
corporation. For instance where there is a failure to pay dividends, denial of right to
attend and vote in general meeting, etc.59
2.2.6 Stateless Persons and Refugees
A person who does not have a nationality is said to be stateless. This could be either intentionally
or unintentionally. Since there is no nationality which is the link between the individual and the
state, the person may be left unprotected under international law.60
To avoid being stateless,
efforts have been made internationally,61
the recent one being the 2006 International Law
Commission‟s Draft Articles on Diplomatic Protection. Article 8(1) of the International Law
Commission‟s Draft Article on Diplomatic Protection provides that a state may exercise
diplomatic protection in respect of a stateless person who at the date of the injury and at the date
of the official presentation of the claim is lawfully and habitually resident in that State. Hence
“the criterion of personal residence is adopted for determining which state has primary
jurisdictional competence with respect to stateless persons and for the process of selecting the
law governing personal status”.62
Refugee status is a form of statelessness because the stateless person is in the same condition as a
refugee, “in that the state whose nationality they possess is unlikely to afford them any protection
or otherwise provide them with the benefits which normally flow from the possession of a
nationality”.63
Under Article 8(2), a state can also exercise diplomatic protection for a
recognized refugee if at the date of the injury and at the date of the official presentation of the
claim, he is a resident of that state. But the state of residence of the refugee cannot claim against
the refugee‟s home state for any injury suffered.64
59
Ibid at Article 12. 60
Oppenheim International Law Jennings and Watts (eds.) 1992 at 886.
61 Like the 1930 Hague Convention on the Conflict of Nationality Laws, The 1948 Universal Declaration of Human
Rights etc. 62
O’Connell International Law (1965) 748.
63 Oppenheim International Law Jennings and Watts (eds.) 1992 at 891.
64 Article 8(3) of the International Law Commission’s Draft Article on Diplomatic Protection, 2006.
27
Though the provisions of the draft article provide for the above mentioned rights for the
shareholders, but this is but a draft article which is still not binding.
28
2.3 Right to Diplomatic Protection
Can a national who runs into problems in a foreign country demand to be protected by his/her
national state? Can that national insist on being protected regardless, and what is the level of
dedication and effort the state have to exhibit? To answer this, one must consider the provisions
of the International Law Commission‟s Draft Article on Diplomatic Protection and different
cases which have been decided or adjudicated upon by the courts.
2.3.1 The International Law Commission and Diplomatic Protection
Diplomatic protection was first included in the International Law Commission‟s agenda in 1995.
In the Commission‟s view, it believed that the work on diplomatic protection would not only
compliment the earlier work of the Commission on state responsibility but will also be beneficial
to all the Member States. The issues the Commission would consider included; “the content and
scope of the rule of exhaustion of local remedies; the rule of nationality of claims as applied to
both natural and legal persons, including its relation to so-called functional protection; and
problems of stateless persons and dual nationals. In 1997, the Commission setup a working
group chaired by a Special Reporteur, Mr. Mohamed Bennouna, to look into the scope and
content of the topic. Upon his resignation in 1999, Christopher John Dugard was appointed in his
place. In 2000, Christopher John Dugard submitted his first report to the Commission. Some of
the proposed articles were accepted and some rejected. Amongst those rejected proposed article
was article 4 which is on the duty to exercise diplomatic protection in cases of injury arising
from a grave breach of a jus cogens norm. Christopher John Dugard continued to submit
proposal in subsequent sessions to the Commission for approval. The draft article is now in its
final stages.65
Dugard in the 2011 edition of his book, International Law a South African Perspective, believes
that even where there seem to be no duty on the state to provide diplomatic protection in
international law, the state is obligated under municipal law.
“There is growing support for the proposition that there is some duty on states to afford
diplomatic protection to nationals subjected to serious human rights violations in foreign
65
International Law Commission; Reservations to Treaties. Accessed from http://untreaty.un.org/ilc/summaries/1_8.htm on 11th of Sept., 2012 at 12:30
29
states, albeit under domestic administrative and constitutional rules rather than
international law”.66
Shaw in his book, International Law, seems to agree with this proposition but still emphasizes
the relevance of a state, where he stated that:
“… Although international law is now moving to a stage whereby individuals may
acquire rights free from the interposition of the state, it is only through the medium of the
state that the individual may obtain the full range of benefits available under international
law, and nationality is the key”.67
2.3.2 Rights in Municipal Law
In Abbassi and Another v. Secretary of States for Foreign and Commonwealth Affairs,68
the
claimant, a British citizen was detained in Guantanamo Bay Naval Base by the United States of
America. Following the terrorist attacks in the United State on 11th
of September 2001, the
United States engaged in fighting terrorism both in Afghanistan and other parts of the world. The
claimant was captured in Afghanistan in the course of the conflict and transferred to Guantanamo
Bay along with other detainees, where they were interrogated by United States officials. The
detainees were not considered as prisoners of war, but rather as unlawful combatants. For this
reason, the United States did not consider them to have right of access to a lawyer or to challenge
the legality of their detention in court. The United State Courts dismissed a number of actions
brought before it by or on behalf of those detained. The Inter- American Commission on Human
Rights then called on the United States for the determination of the legal status of the detainees
by a competent tribunal.69
The United States contested the jurisdiction of the Inter- American
Commission on Human Rights and measures for which it called it.
66
Dugard International Law A South African Perspective (2011) 291. 67
Shaw International Law (2008) 809. 68
(2002) 126 ILR 685. 69
Ibid at 696.
30
Abassi and other British detainees then instituted action against the Secretary of State for Foreign
and Common Wealth Affairs and the Home Department for lack of protection against
interrogation by the United States Officials.
The Court emphasized that there is no support for the proposition that the United Kingdom
authority had a duty to protect its citizens, and also making reference to the rejection of Professor
Dugard‟s report to the International Law Commission.70
The Court noted that the conventional view is that a “state intervenes by diplomatic action in aid
of a subject who has been treated by another state in a manner which infringes international law,
the injury that has been done is to the state and the right is of the state… But there is a recent
development in international law which recognizes that the right infringed upon is that of the
subject and intervention of the state is in support of the right of that subject”.71
In Kaunda and Others v. President of the Republic of South Africa and others72
, the applicants
were 69 South African citizens arrested and detained in Zimbabwe on a variety of charges
ranging from conspiracy to possession of dangerous weapons to making false declarations. The
applicants were accused of being mercenaries and of plotting a coup to overthrow the president
of Equatorial Guinea. The applicants claimed they were security guards employed by a company
in Democratic Republic of Congo involved in mining operations. They claim they were required
to arm themselves with weapons suitable to resist rebel army attacks. They were en-route to the
Democratic Republic of Congo to fulfill their contract with the mining company when they were
arrested in Zimbabwe. The applicants then brought an application before the High Court
claiming that they have been subjected to in-human and degrading treatment in a Zimbabwean
prison and feared that they will not get a fair trial and if convicted, that they stand a risk of being
sentenced to death or life imprisonment if extradited to Equitorial Guinea.
The applicants in their application in the High Court sought for an order to compel the
Government of South Africa to intervene on their behalf and to take appropriate steps to ensure
70
Ibid at 714. 71
Ibid at 704 (Para 40). 72
2005 (4) SA 235 (CC).
31
that their rights to dignity, freedom and security of the person and fair conditions of detention
and trial are at all times respected and protected both in Zimbabwe and Equatorial Guinea. The
High Court dismissed the application. An urgent appeal to bring the matter before the
Constitutional Court was then lodged, asserting that they had rights under the constitution
entitling them to make such demands, and claiming that the government had failed to comply
with their demands and that in failing to do so, it had breached their constitutional rights. Hence
they prayed for a mandamus which would order the government to take actions at a diplomatic
level to ensure that their rights are protected and respected by both the Government of Zimbabwe
and Equatorial Guinea.
The Court held that the state has a duty to protect its nationals abroad, those nationals are entitled
to request and be protected under international law against wrongful acts of a foreign state, since
they cannot invoke international law themselves. The Court added that even though such rights
exist, “[d]iplomatic protection remains the prerogative of the State to be exercised at its
discretion”.73
The Court continued that:
“If … citizens have a right to request government to provide them with diplomatic
protection, then government must have a corresponding obligation to consider the request
and deal with it consistently with the constitution…”.74
The Court asserts that in some extreme case, the government may be obliged to take its own
initiative to protect a national.
“There may even be a duty on the government in extreme cases to provide assistance to
its nationals against egregious breaches of international human rights which come to its
knowledge. The victims of such breaches may not be in a position to ask for assistance,
and in such circumstance, on becoming aware of the breaches, the government may well
be obliged to take an initiative itself”.75
73
Ibid at 250 (Para 29). 74
Ibid at 259 (Para 67). 75
Ibid at 260 (Para 70).
32
The Court went on to suggest that the best way to handle the situation of diplomatic protection in
the interest of the national is by negotiations with the state, and not for a Court Order, stating
that:
“The best way to secure relief for the national in whose interest the action is taken may
be to engage in delicate and sensitive negotiations in which diplomats are better placed to
make decisions than judges, and which could be harmed by court proceedings and the
attendant publicity”.76
But where the refusal by the government to treat such request for diplomatic protection is
unreasonable, then the Court would have no choice but to intervene.
“If government refuses to consider a legitimate request, or deals with it in bad faith or
irrationally, a court could require government to deal with the matter properly.
Rationality and bad faith are illustrations of grounds on which a court may be persuaded
to review a decision”.77
Ngcobo J. in concurring with the decision of the Court added that:
“[T]he government has discretion in deciding whether to grant diplomatic protection and
if so, in what manner to grant such protection in each case. It must be left to the
government to assess the foreign policy considerations in making its decision. However,
that does not mean that the whole process is immune from judicial scrutiny. This must
depend on the scope of the duty. … [T]he duty of the government [therefore] entails a
duty to properly consider the request for diplomatic protection. The government must
carefully apply its mind to the request and respond rationally to it. This would require,
amongst other things, the government to follow a fair procedure in processing the request
and it may be required to furnish reasons for its decisions. The request for diplomatic
protection cannot be arbitrarily refused”.78
76
Ibid at 261 (Para 77). 77
Ibid at 262 (Para 80). 78
Ibid at 290-291 (Para 191-2).
33
Judge O‟ Regan dissents in part with the decision of the court by agreeing that the state is
entitled to take diplomatic steps to protect its nationals against the violation of internationally
recognized human rights standards by stating that: “[Government is obligated] to provide
diplomatic protection to its citizens to prevent or repair egregious breaches of international
human right norms. … [Hence the citizen is] entitled to diplomatic protection”.79
But dissents that this obligation is not derived from the Constitution. She is of the view that this
right can also be derived from S 3 of the 1996 South African Constitution:
“In my view, when s 3 speaks of the „privileges and benefits‟ of citizenship it includes
within it the right of the State to make diplomatic representations on their behalf to
protect them against a breach of international law. It is true that historically international
law has taken the view that in making such diplomatic representation, the State acts in
defense of its own interests, not in the interests of its nationals, who are not „subjects‟ of
international law. However, it is increasingly being recognized that this is a fiction in the
sense that the primary beneficiaries of diplomatic representations made by the State are
those nationals in respect of whom the State makes representations. … Given that it is
widely accepted that the right to diplomatic protection does serve the interest of
individuals, it seems appropriate to consider the provision of diplomatic protection by the
State to fall within the „privileges and benefits‟ of citizenship as contemplated by s 3”. 80
In Von Abo v. Government of Republic of South Africa81
, Mr.Von Abo, a South African citizen
and businessman, held various properties and farming interests in Zimbabwe. The government of
Zimbabwe devised a legislative scheme to confiscate land owned by white farmers. This led to
wide-spread expropriation of land and farming businesses without compensation. Many white-
owned farms were taken over by the Zimbabwean government or invaded by people claiming to
be repossessing such lands. Owners of land and farms were forcibly evicted from the land
without due process of the law. Mr. Von Abo‟s farm was one of those repossessed. He then
79
Ibid at 305 (Para 238). 80
Ibid at 303-4 (Para 236). 81
2009 (2) SA 526 (TPD).
34
brought court proceedings against the Zimbabwean government and after having exhausted all
local remedies available to him in Zimbabwe without success, he approached the government of
South Africa for diplomatic protection. The government of South Africa was not forthcoming
with any positive response. After five years and several requests to the South African
government for diplomatic intervention, Mr. Von Abo approached the High Court seeking an
order declaring that the failure of the South African Government to consider and decide his
application for diplomatic protection in respect of the violation of his rights by the Government
of Zimbabwe was inconsistent with the constitution and invalid. The High Court found that the
long drawn-out response of the Government of South Africa amounted to merely “stringing the
appellant along”, and that the respondent never had any serious intention to affording him proper
protection. The Court held that the applicant had a right to diplomatic protection and that the
respondent failed to take the necessary steps to afford the applicant such protection. The court
granted the order for a declaratory and mandatory relief sought by Mr. Von Abo. The respondent
were then given sixty (60) days to take all necessary steps to have the applicant‟s violation of his
right by the Zimbabwean government remedied. The Court through Prinsloo J stated that the
respondent had done nothing and failed in its constitutional duties, stating that:
“…over all these years the respondents have done absolutely nothing to assist the
applicant, despite diligent and continued requests for diplomatic protection… [by the
applicant]. No explanation whatsoever has been forthcoming for this tardy and lackluster
bahaviour. …The feeble excuse offered from time to time in the opposing papers that the
South Africans are dependent on the whims and time frames of the Zimbabweans is
nonsense. This is a powerful and a proud country and there is no reason why it cannot
employ any of the effective internationally recognized diplomatic measures…to bring
about proper protection for its national. For this abject failure and dereliction of duty
there is no explanation whatsoever to be found in the papers filed on behalf of the
respondents”.82
82
Ibid at 550 (Para 91-92).
35
The Court added that: “The applicant…had a right to apply for diplomatic protection, and the
respondents at a minimum, were under a constitutional duty at the very least to properly (that is
rationally) apply their mind to the request for diplomatic protection”.83
Von Abo subsequently applied to the Constitutional Court84
for a confirmation of the High Court
judgment. The Constitutional Court held that the applicant, Von Abo “has approached the Court
erroneously”.85
Mr. Von Abo then returned to the High Court to determine whether the
government has complied with the Court‟s ruling.86
Prinsloo J. concluded “that the respondents
exhibited no interest whatsoever in attempting to comply with the orders of this Court”.87
He
further declared that:
“The internationally recognized forms of diplomatic intervention … have been designed
to force offending states to toe the line. There is no room for an argument that diplomatic
intervention becomes toothless, simply because the offending state exhibits no intention
ever to co-operate. It is precisely under those circumstances when the recognized
interventions…come into play: the strength of the intervention, as illustrated, depends on
the level of resistance. South Africa is the power house of the region. It is common
knowledge that Zimbabwe is dependent on South Africa for almost every conceivable
form of aid and assistance. I see no reason why the respondent cannot apply the necessary
pressure, under these circumstances to assist their valuable and long-suffering citizens,
such as the applicant. In breach of their constitutional duties, the respondents have
refrained from affording such assistance for almost a decade. To date, they have brought
about no meaningful assistance for the applicant whatsoever. The state of affairs may
well continue into the future. The time has arrived for this court to afford the applicant
appropriate and effective relief”.88
83
Ibid at 561 (Para 141). 84
Von Abo v. President of Republic of South Africa 2009 (5) SA 345 (CC). 85
Ibid at 365 (Para 49). 86
Von Abo v. Government of the Republic of South Africa 2010 (3) SA 269 (GNP). 87
Ibid at 286 (Para 56). 88
Ibid at 292 (Para 67 B-E).
36
The Court then ordered that the respondents were liable to pay damages for the violations Von
Abo had suffered as a result of the conduct of the Zimbabwean government.89
The South African Government then successfully appealed this judgment in the Supreme Court
of Appeal.90
The Court through Snyders JA held that the compliance with the orders of the High
Court would be impossible, that the orders set an impossible task for the government.91
Snyders
JA went on to state that the order to pay damages to Von Abo by the Government of South
Africa for the violations of his rights by the Zimbabwean Government lacked legal foundation.
“The factual situation does not give rise to vicarious liability and such liability does not
arise in a constitutional law context. It is therefore a completely foreign concept that one
state would attract liability in terms of its municipal law (because that is the only law that
the respondent could enforce against the appellants) viz a viz its own national for the
wrongs of another state, committed by that state in another country viz a viz the same
individual. The only breach that would legally have occurred in the present case is that
the appellants failed to comply with their duty”.92
The Court then held that the High Court had erred in its judgment by ordering the government to
pay damages for the violation of Von Abo‟s right by the Zimbabwean government. Hence the
order was set aside.
According to the decisions of the various Courts in the cases highlighted above, the rights of the
national ought to be protected under municipal law. The individual has a right to request for
protection from his government and the government has a duty to respond to such request though
with its discretion. And where such government fails in its duty to respond to such request, or
refuses the request irrationally, the Court can intervene on behalf of such individual.
89
Ibid at 292 (Para 68). 90
Government of Republic of South Africa and others v. Von Abo 2011 (5) SA 262 (SCA). 91
Ibid at 274 (Para 27). 92
Ibid at 276 (Para 31).
37
CHAPTER THREE – THE LOCAL REMEDY RULE
3.1 Introduction
When the right of a national of another state is infringed upon by a delinquent state, that national
must first go through the judicial system of the delinquent state to remedy such wrong. It is only
when he/she cannot get redress in that delinquent state that the national can now go through his
home state to intervene for him/her in international law. This is known as the exhaustion of local
remedy rule. Hence a state cannot come into the picture by way of diplomatic protection unless
all the available avenues for remedying the situation are met but proves futile. This chapter will
examine the rule and determine whether there are exceptions to it.
3.2 The Scope of Local Remedy Rule
“The basic rule of international law providing that states have no right to encroach upon the
preserve of other state‟s internal affairs is a consequence of the equality and sovereignty of
states”.93
Hence states are allowed to solve their own internal problems using their own
constitutional procedures before international processes can be employed should a national of
another state not be satisfied with the processes.94
“The purpose of the rule is both to enable the
state to have an opportunity to redress the wrong that has occurred within its own legal order and
to reduce the number of international claims that might be brought”.95
This rule was recognized
by the International Court of Justice in the Interhandel Case as “a well established rule of
customary international law”.96
Also in the Elettronica Sicula (ELSI) Case, the International
Court of Justice stated that it is “an important principle of customary international law”.97
Article 14(1) of the International Law Commission‟s Draft Articles on Diplomatic Protection,
2006 provides that: “A state may not present an international claim in respect of an injury to a
93
Shaw International Law (2008) 272. 94
Ibid at 273. 95
Ibid at 819. 96
Interhandel Case (Switzerland v. United States of America) Preliminary Objections (1959) 27 ILR 475 at 490. 97
ELSI Case (United States v. Italy) 84 ILR 312 (1989) at 348 Para 50.
38
national or other person referred to in Article 898
before the injured person has, subject to Article
1599
, exhausted all local remedies. Article 14(2) defines „local remedies as the legal remedies
which are available to an injured person before judicial or administrative courts or bodies,
whether ordinary or special, of the state alleged to be responsible for causing the injury. This rule
is applicable to both natural and legal persons. A foreign company even when financed by public
capital is still required to exhaust local remedies. Stateless persons and refugees as provided for
in Article 8 of the International Law Commission‟s Draft Article on Diplomatic Protection are
also required to exhaust local remedies.
“The rule requires that „local remedies‟ shall have been exhausted before an international action
can be brought. These „local remedies‟ include not only reference to the courts and tribunals, but
also the use of procedural facilities which municipal law makes available to litigants before such
courts and tribunals. It is the whole system of legal protection, as provided by municipal law,
which must have been put to the test before a State, as the protector of its national, can prosecute
the claim on the international plane”.100
In order to satisfactorily lay the foundation for an
international claim on the ground that local remedies have been exhausted, the foreign litigant
must raise the basic arguments he intends to raise in international proceedings in the municipal
proceedings.101
In the ELSI Case, the International Court of Justice stated that: “for an
international claim to be admissible, it is sufficient if the essence of the claim has been brought
before the competent tribunals and pursued as far as permitted by local law and procedures and
without success”.102
This test is preferable to the stricter test enunciated in the Finnish Ships
98
Article 8 provides that 1.” A state may exercise diplomatic protection in respect of a stateless person who, at the date of 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, in accordance with internationally accepted standards, when that person, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that state”. 99
Draft Article 15 provides that local remedies rule do not need to be exhausted where: a. “there are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress; b. there is undue delay in the remedial process which is attributable to the State alleged to be responsible; c. there was no relevant connection between the injured person and the state alleged to be responsible at the date of injury; d. the injured person is manifestly precluded from pursuing local remedies; or e. the State alleged to be responsible has waived the requirement that local remedies be exhausted”. 100
Currie, Forces and Osterveled International law: Doctrine, Practice and Theory (2007) 797. 101
Commentary to Article 15 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006. 102
ELSI Case (United States v. Italy) 84 ILR 312 at 352 (Para 59).
39
Arbitration Case where it was stated that; all the contentions of fact and propositions of law
which are brought forward by the claimant government must have been investigated and
adjudicated upon by the municipal courts.103
The Claimant State must therefore produce the evidence available to it to support the essence of
its claim in the process of exhausting local remedies.104
The international remedy afforded by
diplomatic protection cannot be used to overcome faulty preparation or presentation of the claim
at the municipal level.105
This cannot be stretched too far so that the Defendant State would not
always claim that the local remedies available were not exhausted, where there is a neglect of
some procedure even when such procedure will not positively affect the case.106
Article 14(3) provides that the exhaustion of local remedies rule applies only to cases in which
the Claimant State has been injured „indirectly‟ that is, through its national. It does not apply to
situations where the Claimant State is directly injured by the wrongful act of another State, this is
because for direct injury the State has a distinct reason of its own for bringing an international
claim.107
In practice it is difficult to decide whether the claim is „direct‟ or „indirect‟. In some
situations, the injury could be „mixed‟, in the sense that it contains elements of both injury to the
State and injury to the nationals of the State. Many disputes before the International Court of
Justice have presented the phenomenon of the mixed claim.108
For instance in the Hostage
Case,109
where there was a direct violation on the part of the Islamic Republic of Iran of the duty
it owed to the United States of America to protect its diplomats and consuls, but at the same time
there was injury to the person of the nationals.
The „but for test‟ like the provisions of Article 14(3) of the Draft Article is used also when the
claim comprising elements of both direct and indirect injuries are present. If the claim would
103
Finish Vessels in Great Britain during the War (Finland v. Great Britain) (1934) 7 ILR 231 at 233. 104
Ambatielos Claim (Greece v. United Kingdom) (1956) 24 ILR 291 at 292 (Para 33). 105
O’Connell International Law (1965) 1059. 106
Ibid. 107
Amerasinghe State Responsibility for Injuries to Aliens (1967) 145-168. 108
Commentary to Article 14 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006. 109
Case concerning United States Diplomatic and Consular staff in Tehran (United States v. Iran) (1979) 61 ILR 530.
40
have been brought anyway regardless of the claim on behalf of the injured national, then the
claim is a direct one and local remedies need not be exhausted. To determine whether a claim is
direct or indirect, other principal factors are considered in making these assessments. These
factors include:110
a. The subject of the dispute,
b. The nature of the claim, and
c. The remedy claimed.
Thus where the subject of the dispute is a Diplomatic Official,111
or State Property112
the claim
will normally be direct, and where the state seeks monetary relief on behalf of its national as a
private individual the claim will be indirect.113
In a „mixed claim‟, it is the duty of the courts to examine different elements of the claim and to
decide whether the direct or the indirect element is preponderant.114
In the ELSI Case a Chamber
of the International Court of Justice rejected the argument of the United States that part of its
claim was premised on the violation of a treaty and that it was therefore unnecessary to exhaust
local remedies, in holding that: “the Chamber has no doubt that the matter which colors and
pervades the United States claim as a whole, is the alleged damage to Raytheon and Machlett, a
United States corporation”.115
Article 14(3) also includes exhaustion of local remedies in respect of a declaratory judgment
brought preponderantly on the basis of an injury to a national.116
In the Interhandel’s Case the
state was required to exhaust local remedies where they have sought a declaratory judgment
110
Commentary to Article 14 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006. 111
Case concerning United States Diplomatic and Consular staff in Tehran (United States v. Iran) (1979) 61 ILR 530. Where the Consular and Staff of the Embassy were held captive. 112
The Corfu Channel’ Case (United Kingdom v. Albania) Merits (1949) 16 ILR 155. British warships were damaged by sea mines. 113
Commentary to Article 14 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006. 114
Ibid. 115
ELSI Case (United States v. Italy) 84 ILR 312 at 349 (Para 52). 116
Ibid.
41
relating to the interpretation and application of a treaty alleged to have been violated by the
respondent state in the course of, or incidental to its unlawful treatment of a national.117
As discussed above, Draft Article 15 makes provisions for the exceptions to the general rule of
exhaustion of local remedies. For an individual to have a strong case before the International
Court of Justice, the individual should exercise some patience when accessing the available local
avenues for remedy in the delinquent state to avoid the case being thrown out for non exhaustion.
Therefore once these exceptions listed in Draft Article 15 do not apply to the particular case, all
the available remedies must be exhausted.
117
The Interhandel case (Switzerland v. United States of America) Preliminary Objections 27 ILR 475 (1959) 492.
42
CHAPER FOUR – TREATMENT OF ALIEN
4.1 Introduction
As the number of nationals abroad increase, so did business and trading activities of those
foreigners in the countries where they have come to reside.118
The question therefore is what
should be the standard of treatment to be meted out by the state to such aliens.
4.2 Standard of Treatment of Aliens
There are basically two standards of treatment proposed by:
(a) Developing countries („national treatment standard‟),
(b) Developed countries („international minimum standard‟)
Most developing countries have “argue[d] that the standard [of treatment] is a national one,
requiring states to treat aliens as well as they treat their own nationals, [While developed
countries] maintain that there is an international minimum standard, which accords aliens a
higher standard of treatment where the national standard fails to meet international standards”.119
The reasoning behind the „national treatment standard‟ brought about the Calvo Doctrine.120
This
doctrine was to prevent western powers from interfering with the internal affairs of other states.
There is usually a clause in a contract between a state and an alien in which the alien agrees to
confine himself/herself to the available local remedies and to renounce diplomatic protection.121
This doctrine has faced several criticisms on the reasoning that under international law,
diplomatic protection is the right of the state and thus an individual does not have the right to
renounce it.122
118
Shaw International Law (2008) 823. 119
Dugard International Law A South African Perspective (2011) 300. 120
Ibid at 298, Shaw International Law (2008) 824. 121
Ibid at 298. 122
Oppenheim International Law Jennings and Watts (eds.) 1992 at 930-931.
43
What then is an international minimum standard? In the Roberts Claim123
, an American was
arrested and detained for seven months without trial. He was housed in a small cell with 30 to 40
other Mexican prisoners. The cell was only 20 feet wide within a primitive building. There was
poor ventilation, poor sanitary accommodation, no facility for them to clean themselves, no
exercise, and the food was scarce, unclean and coarse. The United States sued the Mexican
government for the treatment Mr. Robert received and they responded that he was treated in the
same way as other Mexican prisoners were treated. The Court held that:
“Facts with respect to equality of treatment of aliens and nationals may be important in
determining the merits of a complaint of mistreatment of an alien. But such equality is
not the ultimate test of the propriety of the acts of authorities in the light of international
law. That test is, broadly speaking, whether aliens are treated in accordance with ordinary
standards of civilization”.124
The definition and content of the international minimum standard have remained unclear. The
content or what international minimum standard may entail is gotten from different cases.125
In
the Janes Claim126
, international minimum standard included the failure to apprehend and
prosecute someone who had wrongfully caused an injury to an alien. In the Roberts Claim127
,
international minimum standard included an unreasonable long detention, harsh and unlawful
treatment while in prison.
“Today…the standard of treatment to be accorded to aliens in respect of a personal right is the
international [minimum standard]…found in international human rights instruments and
customary international law”.128
These provisions refer to all individuals, not just aliens or
123
Roberts Claim (United States of America v. United Mexican States) 1926 (4) RIAA 77. Accessed from http://untreaty.un.org/cod/riaa/cases/vol_iv/77-81.pdf, on 16
th of April, 2012 at 11:15.
124 Ibid at 80.
125 Shaw International Law (2008) 824.
126 Laura Janes et al (United States of America v. United Mexican States) 1926 (4) RIAA 82. Accessed from
http://untreaty.un.org/cod/riaa/cases/vol_iv/82-98.pdf, on 16th
of April, 2012 at 11:29. 127
Roberts Claim (United States of America v United Mexican States) 1926 (4) RIAA 77. Accessed from http://untreaty.un.org/cod/riaa/cases/vol_iv/77-81.pdf, on 16
th of April, 2012 at 11:15.
128 Dugard International Law A South African Perspective (2011) 301.
44
nationals, within the jurisdiction of a state and are to be treated without any form of
discrimination.129
The minimum standard accorded to property right is even less clear.130
4.3 Expulsion of Aliens
There is no right of entry for an individual into a country of which he or she is not a citizen or a
national. On entry, such an individual is treated as an alien and may be expelled or removed
therefrom. When expelling such an alien, humane treatment is expected and reasons for such
expulsion must be provided as and when needed. In the Buffolo Case, an Italian was expelled
from Venezuela and the Court stated that: The “states possess a general right of expulsion, but it
could only be resorted to in extreme circumstances and accomplished in a manner least injurious
to the person affected”.131
The International Covenant on Civil and Political Rights provides that “[a]n alien lawfully in the
territory of a State Party to the Covenant may be expelled therefrom only in pursuance of a
decision reached in accordance with the law and shall, except where compelling reasons of
national security otherwise require, be allowed to submit the reasons against his expulsion and to
have his case reviewed by, and be represented for the purpose before, a competent authority or a
person or persons especially designated by the competent authority”.132
The European
Convention on Establishment, 1955, provides in Article 3 paragraph 1 that “[n]ationals of any
Contracting Party lawfully residing in the territory of another Party may be expelled only if they
endanger national security or offend against [public order] or morality”.
States therefore have the right to regulate the entry and exit of aliens within their territory and
may restrict participation in activities like politics, employment etc, but should do so in a
humane manner. In Nyamakazi v. President of Bophuthatswana it was stated that: 129
Some of the instruments are: Article 2 of the International Covenant on Civil and Political Rights, 1966. Provides that each state party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the right recognized in the present Covenant, without distinction as to race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Also in Article 1 of the European Convention on Human Rights,1950. 130
Dugard International Law A South African Perspective (2011) 301. 131
(1903) 10 RIAA 528, as cited by Shaw International Law (2008) 826. 132
Article 13 of International Covenant on Civil and Political Right, 1966.
45
“The international standard relating to the treatment of aliens postulates that if a State
admits an alien into its territory, it must conform in its treatment of him to the
internationally determined standard. This means that a State should accord treatment to
the alien which measures up to the ordinary standards of civilization. The international
standard of treatment of aliens applies in respect of fundamental human rights such as
right to life and integrity of persons but not political rights… [t]here is also a rule of
international law which provides that a State may impose restrictions upon the exercise of
certain rights by aliens admitted into its territory. A State may thus, therefore, impose
restrictions upon the participation by aliens in political or public life, ownership of
property by aliens or upon their taking employment”. 133
The Supreme Court of Appeals also stressed the need for humane treatment in Minister of Home
Affairs v. Watchenuka, by stating that:
“Human dignity has no nationality. It is inherent in all people - citizens and non citizens
alike - simply because they are human. And while that person happens to be in this
country – for whatever reason – it must be respected…”.134
In the treatment of aliens, rights have been accorded to them under customary international law.
One of such rights is the provision of Article 36 of the Vienna Convention on consular relations.
133
1992 (4) SA 540 at 579(C-E) (BGD). 134
2004 (4) SA 326 at 339 (Para 25) (SCA).
46
4.4 Consular Protection
This is regulated by article 36 of the Vienna Convention on Consular Relations (1963) which
provides as follows:
1 “With a view to facilitating the exercise of consular functions relating to nationals of the
sending State:”
a. “Consular officers shall be free to communicate with nationals of the sending State
and to have access to them. Nationals of the sending State shall have the same
freedom with respect to communication with and access to consular officers of the
sending State;”
b. “if he so requests, the competent authorities of the receiving State shall, without
delay, inform the consular post of the sending State if, within its consular district, a
national of that State is arrested or committed to prison or to custody pending trial or
is detained in any other manner. Any communication addressed to the consular post
by the person arrested, in prison, custody or detention shall be forwarded by the said
authorities without delay. The said authorities shall inform the person concerned
without delay of his right under this sub paragraph;”
c. “consular officers shall have the right to visit a national of the sending State who is
in prison, custody, or detention, to converse and correspond with him and to arrange
for his legal representative. They shall also have the right to visit any national of the
sending State who is in prison, custody or detention in their district in pursuance of a
judgment. Nevertheless, consular officers shall refrain from taking action on behalf of
a national who is in prison, custody or detention if he expressly opposes such action.”
In the LaGrand Case (Germany v. United States)135
, The International Court of Justice held that:
“It follows that when the sending State is unaware of the detention of its nationals due to
the failure of the receiving State to provide the requisite consular notification without
135
LaGrand Case (Germany v. USA) 134 ILR 1 (2001) 59.
47
delay…the sending State has been prevented for all practical purposes from exercising its
rights under Article 36 paragraph 1…”.136
In the Avena Case137
, the International Court of Justice took the same approach as in the
LaGrand Case and found that the United States had breached its obligation provided for under
Article 36(1) (b) of The Vienna Convention against Avena and other Mexican nationals and the
Mexican state.138
In the case of Medellin v. Texas139
, Jose Ernesto Medellin an eighteen year old Mexican citizen
had lived in the United States since pre-school. He was a member of the “black and whites”
gang. He was convicted of capital murder and sentenced to death in Texas for the gang rape and
murder of two teenage girls. The two girls were walking home on June 24, 1993 when they
encountered Medellin and his gang members. Medellin tried to engage one of the girls in a
conversation but when she tried to run away, Medellin threw her to the ground. The other gang
members grabbed the other girl and they were subsequently raped and murdered, and their
bodies discarded. Medellin was personally responsible for strangling at least one of the girls with
her own shoe lace. Medellin was later arrested and after being given the Miranda warnings, he
signed a written waiver and made a detailed written confession but the local law enforcement
officers did not inform Medellin of his Vienna Convention rights to notify the Mexican
Consulate of his arrest. Medellin was later convicted of murder and sentenced to death. His
conviction and sentence were upheld on appeal. On being aware of his rights under the Vienna
Convention, he raised the claim for a post conviction relief. The State trial Court held that the
claim was procedurally defaulted because Medellin had failed to raise it at trial or on direct
review. The claim was also rejected by the Court because Medellin had failed to show that any
notification of the Mexican authorities will impact on the validity of his conviction or sentence.
While Medellin‟s application for an appeal was pending in the Fifth Circuit, the International
Court of Justice issued its judgment in the Avena case. The Court held that the United States had
violated Article 36 paragraph 1(b) of the Vienna Convention by failing to inform the 51 named
136
Ibid at 31 Para 74. 137
Case Concerning Avena and Other Mexican National (Mexico v. USA) (2004) 134 ILR 95. 138
Case Concerning Avena and Other Mexican National (Mexico v. USA) (2004) 134 ILR 95 at 136. 139
(2008) 136 ILR 689.
48
Mexican nationals, including Medellin, of their rights under the Vienna Convention. The Fifth
Circuit denied Medellin‟s application holding that the Vienna Convention did not confer
individually enforceable rights. The court though granted Medellin with an order of certiorari but
before oral arguments was heard, the President of the United States, George W. Bush issued a
memorandum to the Attorney General of United States stating that “…United States will
discharge its international obligations under the decision of the International Court of Justice in
Avena, by having State courts give effect to the decision in accordance with general principles of
comity in cases filed by the 51 Mexican nationals addressed in that decision…”.140
Relying on the United States memorandum and the decision by the International Court of Justice,
Medellin filed a second application to the State Court for habeas relief. Thereafter the order for
certiorari which was given was dismissed. Subsequently, the majority decision by Chief Justice
Roberts in dismissing the second state habeas application held that the Vienna Convention
imposed an international legal obligation on the United States but not all such obligations
automatically constitute a binding law that can be enforced by the United States.
“No one disputes that the Avena decision- a decision that flows from the treaties through
which the United States submitted to ICJ jurisdiction with respect to Vienna Convention
disputes- constitutes an international law obligation on the part of the United States. But
not all international law obligations automatically constitute binding federal law
enforceable in United States courts. The question we confront here is whether the Avena
judgment has automatic domestic legal effect such that the judgment of its own force
applies in state and federal courts”. 141
The Court further held that the President does not have the authority to act except empowered by
the constitution or by an act of Congress. The President cannot therefore mandate the courts
through a memorandum to give effect to the International Court of Justice decision in the Avena
Case.
“… The President‟s authority to act, … must stem either from an act of Congress or from
the Constitution itself…[W]hen the President takes measures incompatible with the
140
Ibid at 698. 141
Ibid at 698-699.
49
expressed or implied will of Congress, his power is at its lowest ebb, and the Court can
sustain his actions only by disabling the Congress from acting upon the subject”.142
In the dissenting opinion by Justice Breyer, it was stated that the decision of the International
Court of Justice in the Avena case was binding on domestic courts as the United States accepted
the jurisdiction of the Court under the Optional Protocol for the purposes of compulsory
settlement of disputes.143
He (Justice Breyer) also warned of the risk this kind of decision would
have on the country and on its nationals abroad:
The decisions of the United States Judiciary on the issue produce practical anomalies,
[t]hey unnecessarily complicate the President‟s foreign affairs task … for example, …
they increase the likelihood of worsening relations with our neighbor Mexico, of
precipitating actions by other nations putting at risk American citizens who have the
misfortune to be arrested while travelling abroad, or of diminishing our nation‟s
reputation abroad as a result of our failure to follow the „rule of law‟ principles that we
preach”.144
4.5 Expropriation of Foreign Property
Where a state destroys or confiscates the property of an alien, that state violates the international
minimum standards and more so where there was no compensation. But when there is state
policy on nationalization, the rules applicable in terms of the responsibility of that state is not
clear. Although international law is not against expropriation of alien property, the area of
concern is as to the conditions that need to be met or fulfilled by the state to prevent the act of
nationalization from being unlawful.145
“On one hand, capital-exporting countries require some
measure of protection and security before they will invest abroad, while the capital- importing
142
Ibid at 713-714. 143
Ibid at 724. 144
Ibid at 745. 145
Dugard International Law A South African Perspective (2011) International Law A South African Perspective (2011) 303.
50
countries are weary of the power of foreign investments and the drain of currency that occurs,
and are often stimulated to take over such enterprises”.146
Issues relating to alien property usually arise from the contract between the state and the alien
company. The applicable rule depends on the content of the agreement. In certain cases,
international law will be the applicable law, while in some other cases the law of the contracting
state is applicable.147
Hence due to issues of disagreement and expropriation of property and
assets of the foreign company, the foreign investors would usually want to enter into contracts,
agreements or concessions that will protect their interests.
In Libya v. Texaco one of the conditions included in the concession between the parties is as
follows: “This concession shall be governed by and interpreted in accordance with the principles
of the law of Libya common to the principles of international law and in the absence of such
common principles then by and in accordance with the general principles of law, including such
of those principles as may have been applied by international tribunals”.148
The Court held that,
“the contracts were governed by the principles of Libyan law in so far as they were common to
principles of international law and in the absence of such conformity, by general principles of
law. The deed of concession was within the domain of international law”.149
The kind of clause in the Texaco Case serves to „internationalize‟ the deed of concession so that
in the event of repudiation, international law will apply.
In Van Zyl v. Government of South Africa, the Court held that the government of Lesotho did not
enter into an agreement which is internationalized and refused to accept the claim by Van Zyl
that the contract was internationalized.150
Today, investors would prefer to enter into Multi-lateral or Bi-lateral Investment Treaties that
would give them direct access to international tribunals instead of relying on the customary
international law system of diplomatic protection which is marred by uncertainties. Bilateral
146
Shaw International Law (2008) 828. 147
Ibid at 829. 148
Texaco v. Libya Arab Republic (preliminary award) (1977) 53 ILR 389 at 442. 149
Ibid at 391. 150
Van Zyl v. Government of the Republic of South Africa 2008 (3) SA 294 at 315- 317 (SCA).
51
Investment Treaties (BITS) and International Centre for the Settlement of Investment Disputes
(ICSID) will be discussed briefly below
4.5.1 Bilateral Investment Treaties (BITS)
A BIT has been defined as “an international legal instrument through which two countries set
down rules that will govern investments by their respective nationals in the other‟s territory”.151
It was also defined as “an agreement between two countries dealing with the treatment of
investment by individuals or companies from either party in the territory of the other party”.152
Its popularity has grown over the years due to its regulation and procedures in the protection of
foreign investments”.153
After World War II, there was a need to modify international law on foreign investment due to
the fast expansion of international investment. The need for an effective investment law was
necessary to effectively protect the interest of foreign investors as the existing laws and practices
were marred by inadequacies. Some of the inadequacies included;
1. Contemporary investment practices were not taken into account hence major
concerns of the foreign investors could not be addressed i.e processes of making
monetary transfers were not addressed.
2. The laws or principles that were in existence were either too vague or had several
interpretations.
3. There was no effective enforcement mechanism for the foreign investors against a
host state who have reneged from their contractual obligations.154
151
Salacuse and Sullivan “Do BITS Really Work? An Evaluation of Bilateral Investment Treaties and their Grand Bargain” in Sauvant and Sachs (Eds) The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties and Investment Flaws (2009) 109. 152
Strydom, in his work on The Legal Principles Relating to Climate Change (2011) 29. 153
Ibid. 154
Salacuse and Sullivan “Do BITS Really Work? An Evaluation of Bilateral Investment Treaties and their Grand Bargain” in Sauvant and Sachs (eds.) The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties and Investment Flaws (2009) 111.
52
Today, foreign investors can breathe a sigh of relief as their investments are adequately and
effectively protected. There are now „comprehensive, specific and largely uncontested set of
international legal rules to give a protective shelter to foreign investors. And in the case of
misunderstanding, seizure of investment or refusal to respect contractual agreement, there is an
effective enforcement mechanism to pursue the foreign investor‟s claim against the host
country”.155
This enforcement mechanism, in the form of The Convention on the Settlement of Investment
Disputes between States and the nationals of others States was established in 1965. The
Convention in turn created the International Centre for the Settlement of Investment Disputes
(ICSID). Provided that both parties to the agreement acceded to the Convention, disputes will be
settled by the Arbitration.156
In the Von Abo Case, the applicant requested the Government of
South Africa to become a party to the ICSID so that compensation claims would be pursued
under the ICSID complaint mechanisms against the Government of Zimbabwe (who was already
a contracting party). This request was denied.157
155
Ibid at 112-113. 156
Van Zyl v. Government of the Republic of South Africa 2008 (3) SA 294 (SCA) at 317. The Supreme Court of Appeal stated that South Africa is not a Contracting Party to the ICSID. 157
Von Abo v. President of South Africa 2009 (5) SA 532 (CC) at 535-8.
53
CONCLUSION
The state has a right in international law against any other state that infringes on its rights
whether directly or indirectly (through its nationals). This right is discretionary in nature
meaning that the state has the right to determine if it will act, when and how to act. But there are
several situations where the state has refused to act, i.e in the British Case of Abassi and Another
v. Secretary of States for Foreign and Commonwealth Affairs and the Von Abo Case as discussed
above. International Court of Justice has stated that where the state refuses to act, this does not
create a vacuum. In the Barcelona Traction Case, the Court stated that the right is that of the
state and the discretion to use it lies with it. “This cannot be regarded as amounting to a situation
where a violation of law remains without a remedy…a legal vacuum. There is no obligation upon
the possessors of rights to exercise them. Sometimes no remedy is sought, though rights are
infringed. To equate this with the creation of a vacuum would be to equate a right with an
obligation”.158
However, the law states that when there is a wrong, there must be a remedy. Therefore if the
state is unwilling to act, the individual who has suffered a wrong in the hands of a delinquent
state is still without a remedy. What then is the fate of that individual? According to the LaGrand
and the Avena‟s case the International Court of Justice is of the view that there is a progression to
the fact that an individual has some kind of right in international law but still, individuals do not
have the locus standi to go before it and cannot insist on being protected by his/her home state in
international law. There should be a forum where such an individual who finds himself in this
kind of dilemma can seek redress.
Under the municipal law, it has been established in the Kaunda Case, that the state has a duty to
diplomatically protect its national although discretion still lies with the state in doing so.
However if a state fails to do so, the individual can seek redress with the judicial system. But to
actually get this redress will be influenced by the independence of the judicial system. Owing
from the cases examined above, it is evident that the South African Judiciary is independent.
158
Ibid at 218-9 (Para 80).
54
From the cases decided by the South African judicial system, it reveals that the decisions of the
International Court of Justice are highly favoured and the Court‟s decisions are influenced by
them.
55
BIBLIOGRAPHY
BOOKS
Amerasinghe State Responsibility for Injuries to Aliens 1967.
Borchard The Diplomatic Protection of Citizens Abroad or The Law of International Claims
1915.
Currie, Forces and Osterveld, International Law: Doctrine, Practice and Theory 2007.
Cuthbert Joseph, National and Diplomatic Protection 1969.
Dugard, International Law A South African Perspective 2010.
Green International Law 1987.
Kimminga and Scheinin (eds.) The Impact of Human Rights Law on General International Law
2009.
O‟Connell International Law 1965.
Oppenheim, International Law Jennings and Watts (eds.) 1992.
Sauvant and Sachs (Eds.) The Effect of Treaties on Foreign Direct Investment: Bilateral
Investment Treaties, Double Taxation Treaties and Investment Flaws 2009.
Shaw, International Law 2008.
Vattel Law of Nations 1758 (English Translation).
56
CASES
Abbassi and Another v Secretary of States for Foreign and Commonwealth Affairs (2002) 126
ILR 685.
Ambatielos Claim (Greece v United Kingdom) (1956) 24 ILR 291.
Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (2nd
Phase) (1970) 46
ILR 178.
Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Preliminary
Objections) (1964) 46 ILR 1.
Case Concerning Avena and Others Mexican National (Mexico v United States of America)
(2004) 134 ILR 95.
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran)
(1979) 61 ILR 530.
ELSI Case (United States v Italy) (1989) 84 ILR 312.
Finnish Vessels in Great Britain during the War (Finland v Great Britain) (1934) 7 ILR 231.
Government of Republic of South Africa and Others v Von Abo 2011 (5) SA 262 (SCA).
Interhandel Case (Switzerland v United States of America) Preliminary Objections 27 ILR 475
(1959)
Janes Claim (United States of America v United Mexican States) 1926 (4) RIAA 82.
Kaunda and Others v President of the Republic of South Africa and Others 2005 (4) SA 235
(CC).
LaGrand Case (Germany v United States of America) (2001)134 ILR 1.
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Mavrommatis Palestine concession case (Greece v United Kingdom) PCIJ Reports, Series A No
2 (1924) 12
Medellin v Texas (2008) 136 ILR 689.
Merge Claim, 1955.
Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA).
Nottebohm Case (Liechtenstein v Guatemala) 1955 22 ILR 349
Nyamakazi v President of Bophuthatswana 1992 (4) SA 540 (BGD).
Roberts Claim (United States of America v United Mexican States) 1926 (4) RIAA 77.
Taxaco v Libya Arab Republic (Preliminary Award) (1977) 53 ILR 389.
The Buffolo Case (1903) 10 RIAA 528.
The Corfu Channel Case (United Kingdom v Albania) Merits (1949) 16 ILR 155.
Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA).
Von Abo v Government of Republic of South Africa 2009 (2) SA 526 (TPD).
Von Abo v Government of Republic of South Africa 2009 (5) SA 345 (CC).
Von Abo v Government of Republic of South Africa 2010 (3) SA 269 (GNP).
LEGISLATION
British Nationality Act, 1981.
Convention on Certain Questions Relating to the Conflict of Nationality Law, 1930
Convention on the Nationality of Married Women, 1957.
European Convention on Establishment, 1955.
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European Convention on Human Rights, 1950.
Hague Convention on the Conflict of Nationality Laws, 1930.
International Convention on the Settlement of Investment Disputes, 1965.
International Covenant on Civil and Political Rights, 1966.
International Law Commission‟s Draft Article on Diplomatic Protection, 2006.
South African Citizenship Act 17 of 2004, as amended.
South African Citizenship Act 88 of 1995, as amended.
Treaty Establishing the European Community, 2002.
Universal Declaration on Human Rights, 1948.
Vienna Convention on Consular Relations, 1963.
OTHERS
Commentary to the International Law Commission‟s Draft Article on Diplomatic Protection.
Strydom, Legal Principles Relating to Climate Change, 2011.
United Nations Document A/CN4/503, 2000.
WEB SITES
http://earthlink.net/-dybel/Documents/lawofnations,vattel.htm
http://untreaty.un.org/cod/riaa/cases/volvi/77-81.pdf
http://untreaty.un.org/cod/riaa/cases/volvi/82-98.pdf
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