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This chapter discusses violation of international law and the exercise of diplomatic protection. Diplomatic protection is exercised by the national State, in the case of a violation of international law in respect of the person or property of an alien. International law governs the question whether such a violation of international law has taken place, though it may refer to national law for determining whether a violation of international law has occurred. The injury to person or property when caused by the State is to be characterized as a violation of international law in any case by the application of the international minimum standard applicable to the treatment of aliens. Where the initial wrong is not a violation of international law by the host State, resort or an attempted resort to local remedies must take place, or local remedies must be activated before an international wrong, which is a violation of the host State's international obligations, can occur.
Keywords: diplomatic protection, violation, national state, rule of local remedies
As already pointed out, diplomatic protection is exercised, properly, by the national State, in the case of a violation of international law in respect of the person or property of an alien. It is international law that governs the question whether such a violation of international law has taken place, though international law may refer to national law for determining whether a violation of international law has occurred. The rules relating to such violation of international law are primary rules concerning the treatment of aliens the breach of which could lead to the exercise of diplomatic protection. Diplomatic protection occurs at the stage of a dispute after the violation of such primary rules.
The injury to person or property when caused by the State is to be characterized as a violation of international law in any case by the application of what has come to be known as the international minimum standard applicable to the treatment of aliens. Tortious acts are the ones generally to which this standard is applicable. The international minimum standard is applied over and above the content of the national law of the host State to determine a violation of international law. That is to say, a tortious act so characterized by the national law of the host State would also be a violation of international law. It is where the national law fails to meet the international minimum standard that international law will be called in aid to characterize the injury as a violation of international law. Tortious acts may be committed by the State in respect of the person of the alien, such as arrests, physical injury, torture or improper imprisonment, or they may involve the property of the alien, when, for example, the acts cause physical damage to property or in the case of improper deprivation of property.
The primary rules of international law on the treatment of aliens have a broad coverage and include rules which deal both with personal injury and with injuries in respect of property. The treatment of foreign investment is also dealt with by these primary rules. Multilateral and bilateral treaties, such as investment treaties, may contain rules dealing with the treatment of aliens. Where such rules apply they take the place of the customary rules based on the international minimum standard.
It is also to be noted at this point that, most importantly, the standard applicable to acts of the host State is determined primarily by any treaty to which the two States concerned are parties. In the absence of such treaties the minimum (p. 38) standard of international law has come to be influenced by the conventional law governing human rights. Particularly the UN international conventions on political, civil, economic, and social rights and the European and American conventions on human rights have now, it is strongly arguable, had an effect on the international minimum standard for the treatment of aliens. National States would not be ruled out of court for founding an argument relating to the treatment of their nationals on such treaties on the basis that, where appropriate, the definition of wrongs contained in those treaties reflect customary international law and are an indication of the international minimum standard for the treatment of aliens. In this connection it is important to note that in the Diallo Case (Preliminary Objections) the ICJ recently stated:
Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia internationally guaranteed human rights. 1
As pointed out by me elsewhere, 2 a State breach of contract with an alien is not per se a violation of international law, although there has been an interference with the alien's rights by the State. In such cases, as in the case of injury caused the alien by private individuals, there has to be a denial of justice by or in respect of the courts of the host State in order that an international wrong occur. This denial of justice also is to be determined by the application of an international standard. The standard requires, for example, a manifestly unjust judgment, where resort to the courts has been had, or denial of access to the courts by the host State.
The implication of a denial of justice in certain circumstances has led to some confusion arising from the need on the part of the alien to exhaust local remedies. 3 The exhaustion of local remedies is a condition precedent for the exercise of diplomatic protection, as will be seen. A word needs to be said about the violation of international law, denial of justice, and exhaustion of local remedies.
From the point of view of denial of justice a tendency may be observed to accept in principle that there is a distinction between, for example, the situation where the initial injury is a private wrong or the alien is a defendant in a proceeding, and that in which the State commits a wrong which may be equated to an internationally wrongful ‘delict’ or ‘tort’ (better described as a fait internationalement illicite (p. 39) in French or lecho internacionalemente ilícito in Spanish) against the alien. Cases such as the Interhandel Case 4 support the view that, where the alleged wrong of this nature is committed by, or is attributable to, the State, this amounts at once to a violation of that State's international obligations vis-à-vis the alien. On the other hand, where the alleged initial wrong is, for example, a private one for which the State is not responsible or which is not attributable to the State because of an act or omission on its part, or where the alien is a defendant in a case, there is no violation of its international obligations in respect of the alien by the State until some further act or omission attributable to the State has taken place. Such act or omission occurs when a subsequent wrong is perpetrated during the judicial process or the process of settlement of the dispute concerned. This is usually some act or omission of the judiciary which may properly be characterized as a denial of justice. For example, if access to the courts or to the available procedures is obstructed or if a manifestly unjust judgment is given against the alien, whether he be the plaintiff or the defendant, such denial of access or unjust judgment which is attributable to the State is the violation of international law vis-à-vis the alien on which an international claim may be based by the alien's national State. 5 The difference between the two situations is that in the one the alleged initial wrong does not by itself generate a violation of international law, while in the other it does.
In the one situation no additional act or omission connected with the administration of justice is necessary to generate an international wrong, while in the other the international cause of action is precisely the defect in the administration of justice. If this defect is described as a denial of justice, it is this denial of justice that generates a violation of international law in respect of the alien. Where the alleged initial wrong is directly attributable to the State and is an international wrong, this should not and cannot be characterized as a denial of justice, although it is a violation of international law, so that it is not a denial of justice that generates a violation of international law. 6
Recognition must be given to the truth that it is always a State's violation of international law which gives rise to international responsibility, whether that violation is a denial of justice in the narrow sense or not. On the other hand, such a denial of justice not only gives rise to responsibility, where it is the initial State (p. 40) violation of international law, but will in certain circumstances also compound responsibility by creating an additional violation of international law, ie where the initial State violation of international law is something other than, and prior to, that denial of justice.
Given the difference in situations generating a breach of international norm, it becomes easier to understand how the rule that local remedies must be exhausted will operate in each case. Clearly, where the alleged initial wrong is attributable to the State and is an international wrong, the exhaustion of local remedies will take place in respect of the wrong and will be concerned with rectifying that wrong. The rule would then require that remedies be exhausted up to the highest level. The whole of the dispute settlement procedure relates properly to the application of the rule in this case. It would be important to recognize that, consequent upon the exhaustion of remedies, it is sufficient merely that the initial international wrong remain inadequately redressed for the violation of international law to persist and generate a situation that can be subjected to an international claim or to diplomatic protection. There is clearly no requirement that in the process of settling the dispute anything such as a ‘denial of justice’ in any appropriate sense by the organ or organs responsible for settling the dispute be committed, it being understood that the initial violation of international law, which continues to remain unredressed and therefore subsists, should not and cannot be described as a denial of justice.
In these circumstances, therefore, it is not appropriate to say that there must be an exhaustion of local remedies resulting in a denial of justice, for this would mean that something more than the absence of satisfactory redress for the initial wrong (such as denial of access to the courts, undue delay in settling the dispute or the rendering of a manifestly unjust judgment) would be required to give rise to a claim based on diplomatic protection. The fact that the process of internal remedies results in a decision which is contrary to international law or is in violation of the international obligations of the host State cannot appropriately be characterized as a denial of justice, although it is sufficient eventually to give rise to an international claim based on diplomatic protection. It is to be noted that in respect of the final decision in the process of exhausting local remedies there is no need for proof that that decision was ‘manifestly unjust’ in any sense of that term in order to give rise to international responsibility. It is sufficient that the decision is inconsistent with the host State's international obligations for a diplomatic claim to be made or international legal action to be taken. What is required in short is that after the exhaustion of local remedies the final decision taken is simply not one which an international tribunal in prospect would take in the case concerned. The fact that the final decision is one which could reasonably be reached by any impartial court deciding the case does not relieve the host State of, or discharge, its responsibility, for instance, on the ground that there had not been a denial of justice.
Where the initial wrong is not a violation of international law by the host State, for example, where it is a private wrong or where the alien is made a defendant, (p. 41) or where the State is guilty of a simple breach of contract with the alien, resort or an attempted resort to local remedies must take place or local remedies must be activated before an international wrong which is a violation of the host State's international obligations can occur. It is only where such resort, attempted resort, or activation results in an act or omission which is a violation of international law that international responsibility will be incurred, the original wrong not being per se capable of giving rise to responsibility as such. The violation of international law which subsequently takes place may usually be described as a denial of justice. In whatever terms it is described, and whether it is, for example, an act of the executive interfering with the judicial process or denying access to remedies or a failure to make remedies available or an improper act of the judiciary which renders the process tainted or a manifestly unjust judgment pertaining to the substance of the case, this ‘malfunctioning’ of the judicial process is the international wrong which generates international responsibility. If any such malfunctioning of the judicial process, which is to be determined according to the norms of international law, may conveniently be described as a denial of justice, then the international wrong generating responsibility is properly called a denial of justice. 7
This is, however, not the end of the matter in this particular event. The rule of local remedies is then applicable to this international wrong and the claimant must in accordance with the requirements of that rule exhaust (and not merely resort to) the means of local redress in respect of that so-called denial of justice up to the highest level. 8 Thus, it is true to say that in the above circumstances there must be an exhaustion of local remedies—in addition to there being a denial of justice after resort to local remedies—before an international claim may properly be made, although international responsibility would have arisen once there has been a so-called denial of justice. It is important to emphasize that the international wrong, in respect of which responsibility arises and local remedies must be exhausted, is the denial of justice, although the measure of the injury done to the alien may in the appropriate case be the initial wrong which did not per se give rise to international responsibility. 9It is the denial of justice which occurred after the resort to local remedies or after such initial resort was improperly not made possible, which persists and which has not been remedied after local remedies have ultimately been exhausted that is, nevertheless, the cause of action in (p. 42) respect of which responsibility arose and in respect of which an international claim may be made. The failure of redress for the initial denial of justice after exhaustion of local remedies makes an international claim legitimate and appropriate, though it is the initial denial of justice after resort alone, real or imputed, to local remedies that gives rise to international responsibility.
Three simple examples will illustrate how these principles operate:
Two consequences emerge from the situations described above. First, in the case where the initial international wrong is the malfunctioning of the judicial process (a denial of justice, so-called), the activation of local remedies before the occurrence of the international wrong does not pertain to the exhaustion of local remedies or to the operation of the rule of local remedies. The operation of local remedies up to the point of the commission of an international wrong is required in order that an international wrong generating international responsibility for the host State may arise and is not an integral part of the rule. What follows after the ‘denial of justice’ is the result of the genuine application of the rule of local remedies and is the exhaustion of local remedies required by that rule. There must be resort to remedies in order for an international wrong and responsibility to arise from a denial of justice, and exhaustion of remedies after that denial of justice in order for the complaint to be espousable or actionable at an international level, ie by the exercise of the right of diplomatic protection.
Secondly, if, subsequent to the occurrence of the ‘denial of justice’ which constitutes the international wrong from which responsibility arises, and in the course of exhaustion of local remedies in respect of this denial of justice, more instances of the malfunctioning of the judicial process or local remedies occur, these would compound the basic international wrong. Such additional occurrences would not be required for the admissibility of a claim or its espousal after local remedies have been exhausted, as already noted, but they would certainly constitute additional wrongs for which the host State would be responsible.
While statements have often been made to the effect that the exhaustion of local remedies resulting in a denial of justice is a condition precedent to the institution of a diplomatic claim, the above analysis, which, it is believed, accurately reflects what now happens in practice, shows that this kind of statement can lead to misunderstanding and confusion and does not correctly describe the modern (p. 44) developments in international law. Where the basis for international responsibility is a so-called denial of justice, international responsibility will continue to exist, international ‘liability’ will additionally arise, the right of diplomatic protection may be exercised, and an international claim will lie or may be espoused after the exhaustion of local remedies according to the requirements of the rule, because that denial of justice subsists or has been inadequately redressed. Where the basis of international responsibility is a violation of the international obligations of the host State other than a denial of justice, all that is required for an international claim to lie or to be espoused subsequent to the incidence of international responsibility is the simple failure to obtain adequate redress after the exhaustion of local remedies.
Notes:
(1) 2007 ICJ Reports, para 39 (<http://www.icj-cij.org>). It would seem to be more appropriate to describe the impact of human rights developments as widening and implementing the scope of the international minimum standard rather than adding to it. It is, however, correct to state that human rights standards are included in ‘the scope ratione materiae of diplomatic protection’, on the understanding that this is a reference to the international law relating to the treatment of aliens.
(2) See C F Amerasinghe, Local Remedies in International Law (2004), Chapter 5.
(3) The exhaustion of local remedies as a condition for the exercise of diplomatic protection is discussed in Chapter 11 below and in detail in C F Amerasinghe (note 2 above) Chapter 7 ff.
(4) 1959 ICJ Reports 11. There are earlier cases such as the Neer Case (US v Mexico), 4 UNRIAA 60 (1926), and Janes Case (US v Mexico), 4 UNRIAA 82 (1926), which recognize the importance of the kind of initial wrong involved.
(5) The Neer Case and the Janes Case cited at note 3 above.
(6) ‘Responsibility’ arises internationally, in strict terms, at the time at which a violation of international norms takes place. As pointed out above, the international legal violation may take place before resort to the local justice system is had. That the responsibility cannot be enforced by resort to diplomatic or legal action at an international level before local remedies have been exhausted does not alter the fact that international responsibility has been incurred. A further point that may emerge is that the existence of the distinction noted above between the initial international wrongs warrants the restriction of the term denial of justice to no more than acts or omissions committed in the course of the administration of justice or the settlement of a dispute that has already arisen.
(7) Where ‘denial of justice’ is so defined as not to cover all the substantive obligations of the host State connected with the administration of justice, it is possible that the international wrong generating international responsibility will be an act or omission relating to the administration of justice which is not described as a denial of justice but which is, nevertheless, connected with the administration of justice. Local remedies may have to be exhausted in relation to this wrong.
(8) See the Ziat, Ben Kiran Case (Great Britain v Spain), 2 UNRIAA 731 (1924) per arbitrator Huber. However, this is only the general principle. There may be certain wrongs which may be termed ‘denials of justice’ in respect of which no exhaustion of local remedies need take place: see C F Amerasinghe (note 2 above) Chapter 7.
(9) The Neer Case (US v Mexico), 4 UNRIAA 60 (1926).
(10) On the breach by the State of a State contract with an alien and the relationship between such breach and resort to local remedies in terms of a violation of international law see C F Amerasinghe (note 2 above) Chapter 5.
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