A Rule of Customary International Law - Case Study Example

If a violates a rule of customary international law or ignores an obligation of a treaty it has concluded, it commits a breach of internationallaw and thereby a so-called “internationally wrongful act”.1 State responsibility is a fundamental principle of international law based on the doctrine of state sovereignty and equality of states such that whenever one state commits an internationally unlawful act against another state, the offending state is deemed to be in breach of an international obligation with a consequent duty for reparation to the injured state.2 The essential nature of state responsibility hinge upon certain basic factors such as the existence of an international legal obligation in force as between two states, the occurrence of an act or omission which violates that obligation and is imputable to the state responsible, and the resulting loss or damage due to the unlawful act or omission. The law of state responsibility is concerned with the determination of whether there is a wrongful act for which the wrongdoing state is to be held responsible, what the legal consequences are and how such international responsibility may be implemented. Article 8 of the International Law Commission (ILC) Articles provides that the conduct of a person or a group of persons shall be considered as an act of the state under international law if such person or a group of persons is in fact acting under instructions of or under the direction and control of that state in carrying out the conduct. Ancillary to this rule, the doctrine of state responsibility with regard to injuries to nationals rests upon the attribution to one state of the unlawful acts and omissions of its officials agents and the capacity of the other states to adopt the claim of the injured party. Article 44 of the ILC Articles provides that the responsibility of a state may not be invoked if the claim is not brought in accordance with any applicable rule relating to nationality of claims.3 Nationality is the link between the individual and his state as regards particular benefits and obligations while at the same time, it serves as the same link between the individual and the benefits of international law. A state is under a duty to protect its nationals and it may take up their claims against other states, although there is no obligation under international law for states to provide diplomatic protection for their nationals.4 Diplomatic protection is the means by which a State gives effect to another states responsibility for an act in contravention of international law affecting the person or property of a national of the first state. The states right to exercise this protection stems, in turn, from the link of nationality existing between the individual and his state.5 Without this connecting factor of nationality there can normally be no diplomatic protection. It follows, therefore, that, before an international tribunal or court will entertain a claim brought by a state on behalf of an individual, it must be satisfied as to various aspects of the relationship between the individual and his state which together comprise the requirement of nationality. Thus, it has been stated that diplomatic protection is not separate from state responsibility, that is, a state acting on behalf of one of its nationals is nonetheless invoking state responsibility.6 A claim against another state will fail unless it can be proved that the injured individual is a national of the claimant state. This ‘nationality of claims’ rule is well established in customary international law.7 In the Panevezys-Saldutiskis Railway case (concerning a claim for compensation for the expropriation of a railway company filed by Estonia against Lithuania in 1937), the Permanent Court of International Justice said that “in taking up the case of one of its nationals…a State is in reality asserting its own right…This right is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection.8 In the UK, the matter of taking up the claim of a national against another state falls within the prerogative of the Crown although the principles are crystallized in a publication9 based on the rules of international law. Thus, in the case of Abassi v. Secretary of State,10 the Court concluded that there was a clear acceptance by the government of a role in relation to protecting the rights of British citizens abroad where there is evidence of miscarriage or denial of justice. While the basic principle seems clear, the detailed rules flowing from the principle are not making imperative a discussion on the concept of nationality in relation to the principle of state responsibility. Nationality is the status of belonging to a state for certain purposes of international law.11 The general rule is that international law leaves to each state the determination as to who are its nationals, but the state’s discretion can be limited by treaties, such as treaties for the elimination of statelessness. Even under customary law, a state’s discretion is not totally unlimited. For instance, international law would not accept as valid a British law which imposed British nationality on all the inhabitants of France.12 Because of the difference between nationality laws in different states, some people have dual or multiple nationality, while others are stateless. It is in the context of the nationality of claims that international law has gone farthest in limiting the discretion of states concerning the nationality of individuals. In the case of a person who is a dual national of two states, A and B, two problems arise. First, which state can claim against a third state, C? Second, can one of the national states claim against the other? As regards claims against third states, the most widely held view is that both states can claim,13 although this view has been questioned.14 As regards claims by one national state against the other, the orthodox view is that all such claims are inadmissible,15 but in recent cases, the state of the master nationality, the state with which the individual has the closer ties, can protect the individual against the other national state.16 The United Kingdom still accepts the orthodox rule.17 This orthodox rule for dual nationals was that one national state could not file a claim against the other national state when such national state has closer ties to the individual than the claiming state. Subsequently, in the leading case of Nottebohm,18 international law began to limit the power of states to turn themselves into claims agents by conferring their nationality on individuals who had no genuine link with them. Nottebohm was a German national who owned land in Guatemala, and realized in 1939 that his German nationality would be an inconvenience to him if Guatemala entered the war on the Allied side. Therefore, in 1939 he went to stay for a few weeks with his brother in Liechtenstein and acquired Liechtenstein nationality, thereby automatically losing his German nationality under German law as it stood at that time. He then returned to Guatemala and when Guatemala later declared war on Germany, he was interned and his property confiscated. Liechtenstein brought a claim on his behalf against Guatemala before the International Court of Justice, but failed. The Court held that the right of protection arises only when there is a genuine link between the claimant state and its national, and that there was no genuine link between Nottebohm and Liechtenstein. The effect of the decision is not altogether certain. The Court did not say that Nottebohm’s Liechtenstein nationality was invalid for all purposes, only that it gave Liechtenstein no right to protect Nottebohm against Guatemala. It is significant that the Nottebohm’s Liechtenstein nationality was acquired through naturalization. It is uncertain whether international law would apply the same tests to acquisition of nationality at birth or upon marriage. It is possible to acquire the nationality of a country by virtue of being born there, without having any genuine link as discussed by the Court in the Nottebohm case? It is suggested that the genuine link rule applies only in cases where nationality is acquired pursuant to a voluntary act of the individual and not in cases of birth of other modes where nationality is acquired involuntarily. In brief, where an individual possesses dual or multiple nationality, any state of which he is a national may adopt a claim of his against a third state and there appears no need to establish a genuine link between the state of nationality, and the dual or multiple national.19 In the case of more than one nationality, the state with which he has more effective connection maybe able to adopt his claim as against the other state. The Iran-United States Claims Tribunal in The Hague, affirming the Merge case,20 was also confronted with politically highly sensitive dual nationality cases in which claimants seeking compensation from Iran had both American and Iranian nationality. The Tribunal decided on the lines of the Nottebohm case and other precedents that the “dominant and effective nationality” of the claimant is decisive with regard to the admissibility of the claim. In other words, if the claim is raised against Iran, then the Tribunal has jurisdiction if the dominant and effective nationality of the dual national is American, based on factual criteria, such as residence, family connections, gravity of interests, and participation in public life, among others.21 It thus emphasised that the principle based on sovereign equality of states, which excludes diplomatic protection in the case of dual nationality, must yield to the principle of effective nationality whenever such nationality is that of the dominant state. However, if there is no evidence of such predominance, no such yielding shall happen because the test for permitting protection by a state of a national against another state of which he is also a national is the test of effectiveness. Claims may also be made on behalf of companies possessing the nationality of the claimant state.22 For these purposes, a company is regarded as having the nationality of the state under the laws of which it is incorporated and in whose territory it has its registered office. As noted by the ICJ in the Barcelona Traction case (which concerned injuries allegedly inflicted by Spain on a Canadian company allegedly controlled by Belgian shareholders), even if the company operates in a foreign country and is controlled by foreign shareholders, the state whose nationality the company possesses still has a right to make claims on its behalf.23 The Court thus distinguished the Nottebohm case such that if there is no “genuine link” between the company and the state whose nationality the company possesses, it may be that the national state would have no right to make claims on the company’s behalf. Thus, the mere fact that a company operated abroad and was controlled by foreign shareholders did not, by itself, prevent the existence of a genuine link between the company and the state whose nationality it possessed. As a rule, a state is not allowed to make claims on behalf of its nationals who have suffered losses as a result of injuries inflicted on foreign companies in which they own shares. The decision of the ICJ in the Barcelona Traction case recognized one exception to this rule: when the company has gone into liquidation, the national state of the shareholders may make a claim in respect of the losses suffered by them as a result of injuries inflicted on the company.24 In this case the claim failed because the company had not gone into liquidation. Where the injury is inflicted by the state whose nationality the company possesses, it may be that the national state of the shareholders is in a more favourable position as regards making claims. The ICJ left this point open in the Barcelona Traction case, and the obiter dicta of individual judges reached conflicting conclusions. But even in these circumstances, it is probably necessary to prove either that the company has gone into liquidation or that the injury in question has deprived it of so many of its assets that it can no longer operate effectively. Thus, under the doctrine of state responsibility, while a state may offer diplomatic protection to its nationals, its sole determination rests upon the prerogative of the state because there is no rule of international law that obligates a state to adopt the claims of his national. In case of individuals who are dual or multiple nationals, the principle based on sovereign equality of states, which excludes diplomatic protection in the case of dual nationality, must yield to the principle of effective nationality whenever such nationality is that of the dominant state. However, if there is no evidence of such predominance, no such yielding shall happen because the test for permitting protection by a state of a national against another state of which he is also a national is the test of effectiveness. BIBLIOGRAPHY [2002] EWCA Civ. 1598 “Rules regarding the Taking up of International Claims by Her Majesty’s Government” 37 ICLQ 1988 26 (1995) August 2000), UN Doc. A/55/10 Belgium v. Spain, Judgment (Second Phase), ICJ Rep. 1970 Benedek, Nationality Decrees in Tunis and Morocco (Advisory Opinion), EPIL 2 (1981) Bernhardt, German Nationality, EPIL II (1995) Brownlie, State Responsibility, 1983, Part I BYIL 53 (1982) BYIL 54 (1983) Cuthbert, Nationality and Diplomatic Protection (1969) Donner, The Regulation of Nationality in International Law, 2nd edn (1994) Fatouros, National Legal Persons in International Law, EPIL 10 (1987) Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, AJIL 90 (1996) H.v. Mangoldt, Nottebohm Case, EPIL 2 (1981) HMHK v. Netherlands 94 ILR 342 ILC Commentary 2001 International Law Commission, Report on the Work of Its Fifty-Second Session (1 May-9 June and 10 July-18 Iran-United States Claims Tribunal, Decision in Case No. A/18, ILM 23 (1984) Liechtenstein v. Guatemala, ICJ Rep. 1953, 111-25 (Jurisdiction), ICJ Rep. 1955 (Judgment). Lillich (ed.), The United Nations Compensation Commission: Thirteenth Sokol Colloquium, 1995 Lowe/M. Fitzmaurice (eds), Fifty Years of the International Court of Justice, 1996 Mahoney, The Standing of Dual Nations Before the Iran-United States Claims Tribunal, Virginia JIL 24 (1984) Mann, The Protection of Shareholder’s Interests in the Light of the Barcelona Traction Case, AJIL 67 (1973) Mathias, The Weighing of Evidence in a Dual National Case at the Iran-United States Claims Tribunal, NYIL McGarvey-Rosendahl, A New Approach to Dual Nationality, Houston JIL 11 (1986) Merge case, ILR 22 (1955) Nationality Decrees in Tunis and Morocco Case, PCIJ, series B, no. 4 (1923) PCIJ, Series A/B, No. 76, at 16. Plender, British Commonwealth, Subjects and Nationality Rules, EPIL 8 (1985) Randelzhofer, Nationality, EPIL 8 (1985) Reparation for Injuries case, ICJ Rep. 1949 Riedel, Panevezys-Saldutiskis Railway Case, EPIL 2 (1981) Salem case, RIAA II 1161. Shaw. International Law: 5th Edition. Cambridge University Press. 2003 Sik (ed.), Nationality and International Law in Asian Perspective, 1990 United States, AJIL 74 (1980) Weis, Nationality and Statelessness in International Law, 2nd edn (1979) Wolfrum, Internationally Wrongful Acts, EPIL II (1995) Read More