In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization, the application indicates that he was paying a visit there and confirms the transient character of this visit by its request that the naturalization proceedings should be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the ensuing weeks, months or years—on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. If Nottebohm went to Liechtenstein in 1946, this was because of the refusal of Guatemala to admit him. No indication is given of the grounds warranting (p. 115 )the waiver of the condition of residence, required by the 1934 Nationality Law, which waiver was implicitly granted to him. There is no allegation of any economic interest or any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention whatsoever to transfer all or some of his interests and his business activities to Liechtenstein. It is unnecessary in this connection to attribute much importance to the promise to pay the taxes levied at the time of his naturalization. The only links to be discovered between the Principality and Nottebohm are the short sojourns already referred to and the presence in Vaduz of one of his brothers: but his brother's presence is referred to in his application for naturalization only as a reference to his good conduct. Furthermore, other members of his family have asserted Nottebohm's desire to spend his old age in Guatemala. 90
On the basis of these facts the court concluded that, ‘Liechtenstein … is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala and its claim must, for this reason, be held to be inadmissible’, 91 explaining further that:
These facts clearly establish, 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 any way alter the manner of life of the person upon whom its 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.
Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of a national of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not becoming wedded to its traditions, its interests, its way of life or of assuming the obligations—other than fiscal obligations—and exercising the rights pertaining to the status thus acquired. 92
There has been considerable writing, and different views expressed, on the case, 93 but it is difficult to conclude that the case is authority for the proposition that the nationality of a person who has the claimant State's nationality must always be an effective one based on a ‘genuine link’, as described by the court. In the Nottebohm Case Nottebohm (a) had already had the nationality of another State (p. 116 )which he had lost, and (b) the action by the State of his current acquired nationality, Liechtenstein, was against a third State with which he had for some time had, and at the current time did actually have, a closer connection than with Liechtenstein or any other State. These two special features may restrict the scope of any general principle of ‘genuine link’. Had Nottebohm retained German nationality, for instance, it does not follow from the ICJ's decision that Germany would not have had the right, as the national State, to make a claim against Guatemala in the circumstances.
The ‘effective or genuine link’ principle as enunciated in the Nottebohm Case is at least limited to situations where, firstly, the person concerned has no genuine or effective connection with the claimant State and, secondly, where his connection with the respondent State is clearly genuine and more effective even though he may not have the nationality of that State. Not only is the second requirement a necessary feature of the rule but it is clear that relevance of a genuine link becomes one based on a comparison between the person's relationship with the respondent State and the claimant State. 94 There is also some problem with how much value should be given to the fact that a person has lost the nationality of a third State which he previously had, perhaps by acquiring the nationality of the claimant State, while he had continuing connections with that third State. In short, the Nottebohm Case seems to be a very special case and the rule extracted from it may have a broad extension or a very narrow application based on the detailed facts of the case, depending on the approach taken to diplomatic protection. It would seem, however, that there is no good reason to construe the rule as being as broad as to require a genuine or effective link in the abstract between the person and the State of nationality making the claim. At the least, the relationship between the respondent State and the person must be taken into account on a comparative basis, as well as the fact that the current national State's nationality was an acquired one. The reason for not recognizing a broad rule is that it has the effect of curtailing the protection granted to injured persons through the institution of diplomatic protection, while also limiting the right of a national State to protect. The interests of respondent States which are protected by the rule do not need so much protection at the expense of national States and injured persons as to warrant a broad extension of the rule.
The ILC in its 2006 Draft Articles has omitted mention in any form of the rule discussed above. The rule of the ‘effective link’ as framed herein in a narrow manner is a useful one and account should be taken of it, even though it results in less protection for the alien. It is also backed by the authority of the ICJ.
(p. 117 )Natural Persons: Stateless Persons and Refugees
In customary international law diplomatic protection did not extend to stateless persons. As was stated in the Dickson Car Wheel Company Case,
A State … does not commit an international delinquency in inflicting an injury upon an individual lacking nationality, and consequently, no State is empowered to intervene or complain on his behalf either before or after the injury. 95
It was also understood that refugees also would not be protected by States in customary international law. At the 1930 Hague Codification Conference the Netherlands proposed that the right of the receiving State to protect refugees be recognized. The proposal failed to be adopted. 96 There was no controversy about the absence of protection apart from treaty law specifically giving such protection for stateless persons and refugees.
The ILC's 2006 Draft Articles make a breakthrough on this front. Article 8 fearlessly and positively removes the barrier to protection and, consequently, discards for this purpose the thesis that an injury to an alien is an injury to his State of nationality as the subject with rights in international law. The Article states:
1. 1. A State may exercise diplomatic protection in respect of a stateless person who, at the time of the injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.
2. 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 time of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.
3. 3. Paragraph 2 does not apply in respect of an injury caused by an internationally wrongful act of the State of nationality of the refugee.
The change in the law, as the commentary to the Article states, is necessitated by the current concern for the status of both stateless persons and refugees, a concern evidenced by such conventions as the Convention on the Reduction of Statelessness of 1961 97 and the Convention on the Status of Refugees of 1951. 98 The provision does not touch on the status of such persons by changing in this particular case the connecting factor of nationality. This was done in the interests of giving certain aliens—who otherwise would not have had it—access to international protection.
Article 8(1) deals with stateless persons. The commentary states that it gives no definition of stateless person; that such a definition is to be found in the (p. 118 )Convention Relating to the Status of Stateless Persons of 1954 which defines a stateless person as a person who is not considered as a national by any State under the operation of its law; 99 that this definition can no doubt be considered as having acquired a customary status; and that a State may exercise diplomatic protection in respect of such a person, regardless of how he became stateless, provided that he was lawfully and habituallyresident in that State both at the time of injury and at the date of the official presentation of the claim. The requirement of both lawful residence and habitual residence sets a high threshold. While it is possible that this threshold could lead to a situation of lack of effective protection for the individuals involved, the combination of lawful residence and habitual residence is justified in the case of an exceptional measure introduced de lege ferenda. There are two temporal requirements as in the case of nationality. The stateless person must be a lawful and habitual resident of the claimant State both at the time of the injury and at the date of the official presentation of the claim. This ensures that non-nationals are subject to the same rules as nationals in respect of the temporal requirements for the bringing of a claim.
Article 8(2) deals with the diplomatic protection of refugees by their State of residence. Diplomatic protection by the State of residence is particularly important in the case of refugees, because they are unable or unwilling to avail themselves of the protection of the States of nationality 100 and, if they do so, run the risk of losing refugee status in the State of residence. While the requirements in Article 8(2) are the same as for stateless persons there are also important differences between refugees and stateless persons. The ILC decided to insist on lawful residence and habitual residence as preconditions for the exercise of diplomatic protection of refugees, as with stateless persons, despite the fact that Article 28 of the Convention Relating to the Status of Refugees sets the lower threshold of lawfully ‘staying’ rather than residing 101 for contracting States in the issuing of travel documents to refugees. Two factors account for this. The first was that the issue of travel documents, in terms of the convention, did not in any way entitle the holder to diplomatic protection. 102 The second was that there was a need to set a high threshold when introducing an exception to a traditional rule, de lege ferenda. In addition, the term ‘refugee’ in Article 8(2) is not limited to refugees as defined in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol but is intended to cover, in addition, persons who do not strictly conform to this definition. The ILC preferred to set no limit to the term in order to allow a State to extend diplomatic protection to any person that it considered and treated as a refugee. This would be of particular importance for refugees in States not party to the existing international (p. 119 )or regional instruments. The two temporal requirements for the bringing of the claim are the same as for nationality. The refugee must be a lawful and habitual resident of the claimant State both at the time of the injury and at the date of the official presentation of the claim.
Article 8(3) provides that the State of refuge may not exercise diplomatic protection in respect of a refugee against the State of nationality of the refugee. To have permitted this would have contradicted the basic approach of the present ILC articles, according to which nationality is the predominant basis for the exercise of diplomatic protection. The paragraph is also justified on policy grounds. Most refugees have serious complaints about their treatment at the hands of their State of nationality, from which they have fled to avoid persecution. To allow diplomatic protection in such cases would be to open the floodgates for international litigation. Moreover, the fear of demands for such action by refugees might deter States from accepting refugees.
In the case of both stateless persons and refugees the State concerned has a discretion to exercise diplomatic protection. A State has a discretion under international law whether to exercise diplomatic protection in respect of a national. A fortiori it has a discretion whether to extend such protection to a stateless person or refugee.
The commentary also makes it clear, it should be noted, that Article 8 is concerned only with the diplomatic protection of stateless persons and refugees and not with the conferment of nationality upon such persons. The exercise of diplomatic protection in respect of a stateless person or refugee cannot and should not be seen as giving rise to a legitimate expectation of the conferment of nationality. Article 28 of the 1951 Convention Relating to the Status of Refugees, read with paragraph 15 of its Schedule, makes it clear that the issue of a travel document to a refugee does not affect the nationality of the holder. A fortiori the exercise of diplomatic protection in respect of a refugee, or a stateless person, should in no way be construed as affecting the nationality of the protected person.
Finally, Article 8 may be construed as creating a new category of rights enjoyed by States in addition to the right they have in respect of nationals, namely the right not to have stateless persons and refugees residing in their territory injured contrary to international law. This construction is warranted, particularly if aliens are regarded by international law as enjoying international rights.
Natural Persons: Crews of Ships
The 2006 ILC's Draft Article 18 affirms the right of the State or States of nationality of a ship's crew to exercise diplomatic protection on their behalf, while at the same time acknowledging that the State of nationality of the ship also has a right to seek redress on their behalf, irrespective of their nationality, when they have been injured in the course of an injury to the vessel resulting from an (p. 120 )internationally wrongful act. The right of the State of nationality to exercise diplomatic protection on behalf of the members of a ship's crew has not been taken away or replaced by that of the State of nationality of the ship. As in the case of dual nationality, the two rights coexist, although the right of the flag State cannot be characterized as diplomatic protection in the absence of the bond of nationality between the flag State and the members of a ship's crew. There is, however, a close resemblance between this type of protection and diplomatic protection.
There is clear support in the practice of States and in judicial decisions for the position that the State of nationality of a ship (the flag State) may seek redress for members of the crew of the ship who do not have its nationality. 103 State practice emanates mainly from the US. Under US law foreign seamen have traditionally been entitled to the protection of the US, while they serve on US ships. The US view was that once a seaman enlisted on a ship, the only relevant nationality was that of the flag State. 104This status of foreigners serving on US vessels has been reaffirmed in diplomatic communications and consular regulations of the US. 105 Doubts have, however, been raised by the US itself as to whether this practice provides evidence of a customary rule. 106
International case law favours rather than opposes the right of a State to extend protection to non-national seamen. In McCready (US) v Mexico umpire Thornton held that ‘seamen serving in the naval or mercantile marine under a flag not their own are entitled, for the duration of that service, to the protection of the flag under which they serve’. 107 In the ‘I'm Alone’ Case, which arose from the sinking of a Canadian vessel by a US coastguard ship, the Canadian government successfully claimed compensation on behalf of three non-national crew members, on the basis that, where a claim was on behalf of a vessel, members of the crew were to be deemed, for the purposes of the claim, to be of the same nationality as the vessel. 108 In the Reparation Case two judges of the ICJ, in their separate (p. 121 )opinions, affirmed the right of a State to exercise protection on behalf of alien crew members.109
More recently the ITLOS in the M/V ‘Saiga’ (No. 2) Case 110 in effect gave its support to recognizing the right of the flag State to seek redress for non-national crew members. In this case the M/V ‘Saiga’ was arrested and detained by Guinea, while it was supplying oil to fishing vessels off the coast of Guinea. The ship was registered in St Vincent and the Grenadines and its master and crew were Ukrainian nationals. There were also three Senegalese workers on board at the time of the arrest. Following the arrest of the ship, Guinea detained the ship and crew. Before the ITLOS Guinea objected to the admissibility of the claim of the State in which the ship was registered, inter alia, on the ground that the injured crew members were not nationals of that State. The tribunal dismissed these challenges to the admissibility of the claim and held that Guinea had violated the rights of the ship's flag State by arresting and detaining the ship and its crew. It ordered Guinea to pay compensation to the flag State both for the damages to the M/V ‘Saiga’ and for injury to the crew.
Although the tribunal perhaps treated the dispute mainly as one relating to a direct injury to the flag State, 111 the tribunal's reasoning indicates that it saw the case also as a case involving something akin to diplomatic protection. Guinea clearly objected to the admissibility of the claim in respect of the crew on the ground that it constituted a claim for diplomatic protection in respect of non-nationals of the flag State. 112 The claimant State clearly insisted that it had the right to protect the crew of a ship flying its flag ‘irrespective of their nationality’. 113 In dismissing Guinea's objection the tribunal cited several provisions of the UN Convention on the Law of the Sea, including Article 292, pointing out that they drew no distinction between nationals and non-nationals of the flag State. 114 It stated that:
the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant. 115
Apart from the authorities there are good policy reasons for allowing the flag State to seek redress for the ship's crew. This was recognized by the ITLOS (p. 122 )in the above case, when it called attention to ‘the transient and multinational composition of ships’ crews' and stated that large ships:
could have a crew comprising persons of several nationalities. If each person sustaining damage were obliged to look for protection from the State of which such a person is a national, undue hardship would ensue. 116
As a practical consideration, it is much easier and more efficient for one State to seek redress on behalf of all crew members than to require the States of nationality of each crew member to bring separate claims on behalf of their nationals. The claims on behalf of the crew members are in addition to the flag State's claims in respect of the injury to the vessel. There have been no problems with recognizing the right of the flag State as the national State of the ship and of the owners of the ship to bring claims.
While the flag State's right in respect of crew members is akin to but not really that of diplomatic protection, it exists together with the right of diplomatic protection by the State of nationality. Further, neither has priority. Ships' crews are often exposed to hardships emanating both from the flag State, in the form of poor working conditions, and from third States, in the event of the ship being arrested. In these circumstances they should receive the maximum protection that international law can offer. Their national States may clearly espouse their claims against the flag State. Clearly, on the other hand, in an appropriate situation the duplication of claims on behalf of the crew cannot be permitted. 117
Legal or Juridical Persons
In regard to the nationality of corporations, while in principle what has been said above in regard to natural persons would apply, one of the matters with which there has been some difficulty is determining their nationality in certain circumstances. 118 The clearest rule is that a corporation does not necessarily have the nationality of the majority of its shareholders. It will ordinarily have the nationality of the State in which it is incorporated and has its seat of (p. 123 )management. 119 In theBarcelona Traction Co Case, decided by the ICJ, the court applied this principle to find that the nationality of the corporation was Canadian so that only Canada could espouse a claim in respect of the corporation, while Belgium, the State of nationality of the shareholders, had no standing to do so.
The issue which raises problems relates to the right of the national State of the shareholders or a majority of them to espouse a claim in respect of an injury to the corporation. The Barcelona Traction Co Case 120 repays close examination in this connection.
The Barcelona Traction Co was a company incorporated in 1911 in Toronto, Canada, where it had its head office. It was carrying on business in Spain. In the period after 1918 the company's share capital came to be held largely by Belgian nationals, whether natural or legal persons. At the relevant time it was estimated that 88 per cent of the shares were held by Belgian nationals. As a result of a number of measures taken by the Spanish authorities the company was rendered economically defunct. Belgium, the State of nationality of the majority shareholding, and not Canada, the State of nationality of the corporation, then instituted proceedings against Spain for reparation. One of the preliminary objections raised by Spain concerned the right of Belgium to exercise diplomatic protection on behalf of its shareholders in a company incorporated in Canada. The objection was upheld by the Court on the ground that it was Canada and not Belgium which was the national State with the right to bring a claim.121 The court made some significant statements and rulings in coming to this conclusion.
The court said that it was concerned only with the question of the diplomatic protection of shareholders in a limited liability company whose capital was represented by shares. Such companies were characterized by a clear distinction between company and shareholders. Whenever a shareholder's interests were harmed by an injury to the company, it was to the company that the shareholder must look to take action, for, although two separate entities may have suffered from the same wrong, it was only one entity whose rights had been infringed. 122 Only where the act complained of was aimed directly at the rights of the shareholders did the national State of the shareholders have an independent right of action. 123 Such principles governing the distinction between company (p. 124 )and shareholders were derived from national law and not international law, the corporation being a creature of national law.
Consequently, the court affirmed the rule that the right of diplomatic protection in respect of an injury to a corporation belonged to the State under the laws of which the corporation was incorporated and in whose territory it had its registered office, and not to the national State or States of the shareholders of the corporation. In so finding the court declined to follow as precedents for the case in hand both judicial decisions dealing with the characterization of enemy corporations in time of war 124 and State practice in respect of lump sum agreements, 125 which had been cited as authority for a rule in favour of lifting the corporate veil in order to allow the State or States of nationality of shareholders to exercise diplomatic protection on their behalf. Although the court acknowledged that bilateral or multilateral investment treaties could and did confer direct protection on shareholders and that there was a body of general arbitral jurisprudence arising from the interpretation of such treaties which recognized shareholders' claims, this was not regarded as providing evidence of a rule of customary international law in favour of the right of the State or States of nationality of shareholders to exercise diplomatic protection on their behalf. All these practices and decisions based on treaties were rightly considered lex specialis.
The court also specifically said that the State or States of nationality of shareholders might exercise diplomatic protection on their behalf in two situations: first, where the company had ceased to exist as a legal person in its place of incorporation 126 (which was not the case with the Barcelona Traction Co), and secondly, where the State of incorporation was itself responsible for inflicting injury on the company and the foreign shareholders' sole means of protection on the international level was through their State or States of nationality, 127 which was not the case either with the Barcelona Traction Co. The court did not, however, as such endorse this latter exception. 128 The argument that the protection might be allowed on the grounds that the protection of shareholders might be allowed on grounds of equity was dismissed by the court in the circumstances of the case before it, 129 although it did not deny as such that in the appropriate case (p. 125 )shareholders may be protected (eg by substitution) where equity—infra legem—demanded it. The court also declined to recognize the existence of a secondary right of diplomatic protection attaching to the State or States of nationality of shareholders where, as in the case of the Barcelona Traction Co, the State of incorporation declined to exercise diplomatic protection on behalf of the company, by instituting proceedings before the court, inter alia, because there was no valid jurisdictional instrument. 130 The argument that the decision of the International Court in the Nottebohm Case, 131 which it was said required the existence of a genuine link between an injured individual and the State of nationality seeking to protect him, might be applied to corporations (with the consequence that Belgium, with which Barcelona Traction was most genuinely linked by virtue of its nationals holding 88 per cent of the shares in the company, was the appropriate State to exercise diplomatic protection) was not accepted. On the other hand, the court pointed out that in the case before it there was ‘a close and permanent’ link between Barcelona Traction Co and Canada, as it had its registered office there and had held its board meetings there for many years, 132 thus, not clearly rejecting the relevance of the genuine link to the diplomatic protection of corporations.
In reaching its decision that the State of incorporation of a company and not the State or States of nationality of the shareholders in the company is the appropriate State to exercise diplomatic protection in the event of injury to a company, the court referred to several policy considerations. First, when shareholders invest in a corporation doing business abroad they undertake risks, including the risk that the corporation may in the exercise of its discretion decline to exercise diplomatic protection on their behalf. 133 Secondly, if the State of nationality of shareholders is permitted to exercise diplomatic protection, this might lead to a multiplicity of claims by different States, as frequently large corporations comprise shareholders of many nationalities. 134 In this connection the court said that, if the shareholder's State of nationality was empowered to act on his behalf there was no reason why every individual shareholder's national State should not enjoy such a right. 135 Thirdly, the court was reluctant to apply by way of analogy rules relating to dual nationality to corporations and shareholders and to allow the States of nationality of both to exercise diplomatic protection. 136
Äàòà äîáàâëåíèÿ: 2015-09-10; ïðîñìîòðîâ: 12 | Íàðóøåíèå àâòîðñêèõ ïðàâThe Earliest Attempt | Consideration by the ILC | Abstract and Keywords | The State of Nationality | The Defendant State | The Injured Alien | Choices Among Competing Interests | Abstract and Keywords | Abstract and Keywords | Abstract and Keywords 1 ñòðàíèöà |