International law, Sixth edition
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
Diallo (Guinea v. Democratic Republic of the Congo), ICJ Reports, 2007, para. 39.
204 See Report of the ILC on its 58th Session, A/61/10, 2006, p. 13. 205 See the Diallo (Guinea v. Democratic Republic of the Congo) case, ICJ Reports, 2007, para. 39, where the Court noted that article 1 reflected customary law. 206 Kaunda v. President of South Africa CCT 23/04, [2004] ZACC 5, paras. 26–7 and Van Zyl v. Government of RSA [2007] SCA 109 (RSA), para. 1. 810 i n t e r nat i o na l l aw abroad, 207 although it can be said that nationals have a right to request their government to consider diplomatic protection and that government is under a duty to consider that request rationally. 208 In addition, once a state does this, the claim then becomes that of the state. This is a result of the historical reluctance to permit individuals the right in international law to prosecute claims against foreign countries, for reasons relating to state sovereignty and non-interference in internal affairs. This basic principle was elaborated in the Mavrommatis Palestine Con- cessions case. 209 The Permanent Court of International Justice pointed out 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 . . . Once a state has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the state is sole claimant. 210 It follows that the exercise of diplomatic protection cannot be regarded as intervention contrary to international law by the state concerned. Coupled with this right of the state is the constraint that a state may in principle adopt the claims only of its own nationals. Diplomatic protection may not extend to the adoption of claims of foreign subjects, 211 although it has been suggested ‘as an exercise in progressive development of the law’ that a state 207 See e.g. HMHK v. Netherlands 94 ILR, p. 342 and Comercial F SA v. Council of Ministers 88 ILR, p. 691. See also Kaunda v. President of South Africa CCT 23/04, [2004] ZACC 5, paras. 29 and 34, noting that diplomatic protection is not recognised in international law as a human right, but a prerogative of the state to be exercised at its discretion (per Chief Justice Chaskalson). 208 See Van Zyl v. Government of RSA [2007] SCA 109 (RSA), para. 6. 209 PCIJ, Series A, No. 2, 1924, p. 12. See the Panevezys–Saldutiskis case, PCIJ, Series A/B, No. 76; 9 AD, p. 308. See also Vattel, who noted that ‘whoever ill-treats a citizen indirectly injures the state, which must protect that citizen’, The Law of Nations, 1916 trans., p. 136. 210 See e.g. Lonrho Exports Ltd v. ECGD [1996] 4 All ER 673, 687; 108 ILR, p. 596. 211 However, note article 20 of the European Community Treaty, under which every person holding the nationality of a member state (and thus a citizen of the European Union under article 17) is entitled to receive diplomatic protection by the diplomatic or con- sular authority of any member state on the same conditions as nationals of that state when in the territory of a third state where the country of his or her nationality is not represented. s tat e r e s p o n s i b i l i t y 811 may adopt the claim of a stateless person or refugee who at the dates of the injury and presentation of the claim is lawfully and habitually resident in that state. 212 Such diplomatic protection is not a right of the national concerned, but a right of the state which it may or may not choose to exercise. 213 It is not a duty incumbent upon the state under international law. As the Court noted in the Barcelona Traction case, within the limits prescribed by international law, a state may exercise diplo- matic 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 le- gal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. 214 The UK takes the view that the taking up of a claim against a foreign state is a matter within the prerogative of the Crown, but various prin- ciples are outlined in its publication, ‘Rules regarding the Taking up of International Claims by Her Majesty’s Government’, stated to be based on international law. 215 This distinguishes between formal claims and in- formal representations. In the former case, Rule VIII provides that, ‘If, in exhausting any municipal remedies, the claimant has met with prejudice or obstruction, which are a denial of justice, HMG [Her Majesty’s Gov- ernment] may intervene on his behalf in order to secure justice.’ In the latter case, the UK will consider making representations if, when all legal remedies have been exhausted, the British national has evidence of a mis- carriage or denial of justice. This may apply to cases where fundamental violations of the national’s human rights had demonstrably altered the course of justice. The UK has also stated that it would consider making 212 See article 8 of the Draft Articles on Diplomatic Protection. In R v. Al-Rawi [2006] EWCA Civ 1279, para. 89, the Court of Appeal held that there was no basis for accepting that non-British nationals enjoyed an Abbasi expectation that the UK government would consider making representations to a foreign state on their behalf. Article 8 was not regarded as part of customary international law, ibid., paras. 118–20. Note the special position of a national working for an international organisation, where there may be a danger to the independence of the official where diplomatic protection is exercised: see e.g. the Reparation case, ICJ Reports, 1949, pp. 174, 183. 213 See e.g. the Interhandel case, ICJ Reports, 1957, pp. 6, 27; Administrative Decision No. V 7 RIAA, p. 119; 2 AD, pp. 185, 191 and US v. Dulles 222 F.2d 390. See also DUSPIL, 1973, pp. 332–4. 214 ICJ Reports, 1970, pp. 3, 44; 46 ILR, p. 178. 215 See 37 ICLQ, 1988, p. 1006 and UKMIL, 70 BYIL, 1999, p. 526. 812 i n t e r nat i o na l l aw direct representations to third governments where it is believed that they were in breach of their international obligations. 216 The issue was discussed by the Court of Appeal in Abbasi v. Secretary Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling