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This Article retains a right of diplomatic protection accorded to the national State or States of shareholders which has always been recognized and was affirmed in the Barcelona Traction Co Case. 184 The court did so, even though the claimant State, Belgium, made it clear that it did not base its claim on a direct infringement of the rights of the shareholders.
The issue of the protection of the direct rights of shareholders was before the ICJ in the ELSI Case. 185However, in that case, the rights in question, such as the (p. 138) rights of the shareholders to organize, control, and manage the company, were to be found in the Treaty of Friendship, Commerce and Navigation that the court was called upon to interpret and the court did not expound the rules of customary international law on this subject.
Article 12 makes no attempt to provide an exhaustive list of the rights of shareholders as distinct from those of the corporation itself. In the Barcelona Traction Co Case the ICJ mentioned the most obvious rights of shareholders—the right to a declared dividend, the right to attend and vote at general meetings, and the right to share in the residual assets of the company on liquidation—but made it clear that this list was not exhaustive. This means that it is left to courts to determine, on the facts of individual cases, the limits of such rights. It will be necessary to draw clear lines between shareholders' rights and corporate rights, particularly in respect of the right to participate in the management of corporations. That Article 12 is to be interpreted restrictively is emphasized by the phrases ‘the rights of the shareholders as such’ and rights ‘as distinct from those of the corporation itself’.
Article 12 does not specify the legal order that must determine which rights belong to the shareholder as distinct from the corporation. In most cases this is a matter to be decided by the national law of the State of incorporation. Where the company is incorporated in the wrongdoing State, however, there may be a case for the invocation of general principles of company law in order to ensure that the rights of foreign shareholders are not subjected to discriminatory treatment. 186
Other Legal (or Juridical) Persons
A legal (or juridical) person is any object, association or institution which the law endows with the capacity of acquiring rights and incurring obligations and is not a natural being. Legal personality is not a natural phenomenon but a creation of law. 187 A legal system may confer legal personality on whatever object, association or institution it pleases. There is no consistency or uniformity among legal systems in the conferment of such legal personality. What is common to legal systems is that a legal person must have recognition by law, ie by a national legal system, to claim legal personality. Both the ICJ and the ECJ have accepted and stressed this truth. This is the practical reality though there is much scholarly (p. 139) discussion about, and many theories explaining, the legal nature of juristic personality 188 and in particular, about the manner in which a legal person comes into being. In the Barcelona Traction Co Case the ICJ said:
In this field international law is called upon to recognize institutions of municipal law that have an important and extensive role in the international field. This does not necessarily imply drawing any analogy between its own institutions and those of municipal law, nor does it amount to making rules of international law dependent upon categories of municipal law. All it means is that international law has had to recognize the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of States with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law. Consequently, in view of the relevance to the present case of the rights of the corporate entity and its shareholders under municipal law, the Court must devote attention to the nature and interrelation of those rights.189
On freedom of establishment the ECJ stated, ‘It should be borne in mind that, unlike natural persons, companies are creatures of the law … They exist only by virtue of the varying national legislation which determines their incorporation and functioning.’ 190
Regardless of origin and history 191 there are today a wide range of legal persons with differing characteristics, including corporations, public enterprises, universities, schools, foundations, churches, municipalities, non-profit-making associations, non-governmental organizations, and in some States even partnerships. It is impossible to find common, uniform features in all these legal persons. 192 However, the corporation, with a firm distinction between it and its shareholders, with limited liability attaching to the latter and with commerce and profit-making as its purpose, unlike public enterprise, the university, the municipality, the foundation, and other such legal persons, engages in foreign trade and investment. Moreover, its activities promote international economic life and oil the machinery of international dispute settlement. Thus, diplomatic protection in respect of legal persons has come to be mainly about the protection of foreign (p. 140) investment. This is why the corporation is the legal person upon which there is focus in the field of diplomatic protection. 193
Be that as it may, the corporation is not the only legal person that may merit diplomatic protection. Regard must be had to other legal persons in the context of diplomatic protection. As has been observed, 194 the case law of the PCIJ:
shows that a commune 195 (municipality) or university 196 may in certain circumstances qualify as nationals of a State and as legal persons. There is no reason why such legal persons should not qualify for diplomatic protection if injured abroad, provided that they are autonomous entities not forming part of the apparatus of the protecting State …
Non-profit-making foundations, comprising assets set aside by a donor or testator for a charitable purpose, constitute legal persons without members. Today many foundations fund projects abroad to promote health, welfare, women's rights, human rights and the environment in developing countries. Should such a legal person be subjected to an internationally wrongful act by the host State, it is probable that it would be granted diplomatic protection by the State under whose laws it has been created. Non-governmental organizations 197 engaged in worthy cases abroad would appear to fall into the same category as foundations.
Legal persons may take a variety of forms. For example, partnerships in most legal systems are not legal persons and it is the interests of the individual partners which would be subject to diplomatic protection in international law, but in some legal systems the partnership enjoys legal personality, 198in which case it is possible that the individual partners be treated in the same manner as shareholders. A different situation arises, for instance, with the European Economic Interest Grouping (EEIG), created by European Community law. 199 According to Article 1(2) of the regulations creating that entity, ‘A grouping so formed shall, from the date of its registration as provided for in Article 6, have the capacity, in its own name, to have rights and obligations of all kinds, to make contracts or accomplish (p. 141) other legal acts, and to sue and be sued.’ Article 1(3) then stipulates: ‘The member States shall determine whether or not groupings registered at their registries, pursuant to article 6, have legal personality.’ The same types of entities, endowed with equal legal capacities by a uniform statute, may therefore be granted legal personality in one European Union Member State and left without it in another. Although the common law treats companies and partnerships as entirely separate creatures, some legal systems recognize hybrid forms. 200
In view of the diversity of species of legal persons, the ILC has taken the course of drafting a provision that extends the principles of diplomatic protection adopted for corporations to other legal persons—subject to necessary changes to take account of the different features of each legal person. Draft Article 13 of the ILC provides that the principles governing the State of nationality of corporations and the application of the principle of continuous nationality to corporations, contained in Draft Articles 9 and 10 respectively apply ‘as appropriate’, to the diplomatic protection of legal persons other than corporations. There is a lack of precedent, whether in State practice or in international judicial decisions. Thus, the proposed draft Article, without being revolutionary, supplies a filling for a defined gap. Clearly, also whether legal persons such as those being discussed have the nationality of a State for the purposes of diplomatic protection will be determined primarily by the law of that State. 201
Notes:
(1) For more judicial authorities on the rule see Van Panhuys, The Role of Nationality in International Law: An Outline (1959) 59–73; García Amador, ‘Third Report to the ILC’; 2 YBILC (1950) 66; Jessup, A Modern Law of Nations (1968 reprint) 99; Ohly, ‘A Functional Analysis of Claimant Eligibility’, in Lillich (ed), International Law of State Responsibility for Injuries to Aliens (1983) 284; C F Amerasinghe, State Responsibility for Injuries to Aliens (1967) 61 ff; C F Amerasinghe, Local Remedies in International Law (2nd edn, 2004) 43 ff. The nationality of claims in regard to the jurisdiction of the ICJ has been discussed briefly by me in Jurisdiction of International Tribunals (2003) 259 ff. In the Diallo Case (Preliminary Objections) the ICJ confirmed the relevance of nationality when it noted that Diallo, the claimant State's national, had the nationality of the claimant State: 2007 ICJ Reports, para. 41 (<www.icj-cij.org>), which fact was not disputed.
(2) (1939), PCIJ Series A/B No 76, 16.
(3) (1947), 4 UNRIAA 26.
(4) The Nationality Decrees in Tunis and Morocco Opinion (1923), PCIJ Series B No 4, 24. This principle was affirmed in Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws: ‘It is for each State to determine under its own law who are its nationals’ (179 LNTS 89). More recently it has been endorsed by the 1997 European Convention on Nationality (ETS No 166, Art 3) and it is difficult to resist the conclusion that it has acquired the status of customary law: see Bar-Yaacov, Dual Nationality (1961) 2.
(5) (1923), PCIJ Series B No 4, 24.
(6) Hudson, ‘Nationality, Including Statelessness, Report’, 2 YBILC (1952), UN Doc A/C 4/50, 10;Verdross and Simma, Univerzelles Volkerrecht: Theorie und Praxis 788–9. Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws recognized the possibility of limitations by qualifying its affirmation that ‘it is for each State to determine under its own law who are its nationals’ with the provision that ‘This law shall be recognized by other States in so far as it is consistent with international conventions, international custom and the principles of law generally recognized with regard to nationality’ 179 LNTS 89. See also Article 3(2) of the 1997 European Convention on Nationality, ETS No 166, Art 3 ff.
(7) See Article 20 of the American Convention on Human Rights, Article 5(d)(iii) of the International Convention on the Elimination of All Forms of Racial Discrimination, and Article 9 of the Convention on the Elimination of All Forms of Discriminating against Women. See also the ILC Draft Articles on Nationality in Relation to Succession of States, UN Doc A/CN.4/L.581/Add.1.
(8) 79 ILR 296.
(9) For the general law see Bar-Yaacov (note 4 above) 2.
(10) See Brownlie, Principles of International Law (2003) 460; Weiss, Nationality and Statelessness in International Law (1979) 218–20, 244; Bar-Yaacov (note 4 above) 143; the Flegenheimer Case (1958), 25 ILR 98–101; the Salem Case (1932) 2 UNRIAA 1184; the Esphanian Case (1983), 2 Iran-US CTR 166.
(11) Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, 92 Hague Recueil (1957) 196–201; Jones, British Nationality Law and Practice (1956) 15.
(12) 79 ILR 302–3.
(13) 1955 ICJ Reports 23.
(14) (1958), 25 ILR 150.
(15) Ibid 148.
(16) Article 91 of the 1982 United Nations Convention on the Law of the Sea; 1986 Convention on Conditions for the Registration of Ships. See also Article 3(3) of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1994), 33 ILM 968.
(17) See Warbrick, ‘Protection of Nationals Abroad: Current Legal Problems’, 37 ICLQ (1988) 1006.
(18) Geck, ‘Diplomatic Protection’, in 3 EPIL (1992) 1050, Randelzhofer, ‘Nationality’, in 3 Ibid 507;Parry, ‘Some Considerations upon the Protection of Individuals in International Law’, 90 Hague Recueil (1956) 707; Jones, ‘The Nottebohm Case’, 5 ICLQ (1956) 239–40, 243–4.
(19) Van Panhuys (note 1 above) 158, 161; Fitzmaurice (note 11 above) 206–7; Ruzié, ‘Nationalité, Effectivité et Droit Communitaire’, RGDIP (1993) 113; de Castro, ‘La Nationalité, la Double et Supra-Nationalité’, 102 Hague Recueil (1961) 582.
(20) See 1 YBILC (1953) 180, 186, 239 (Yepes); 181, 218 (Zourek); 184, 237 (Francois); 239 (Amado).
(21) García Amador proposed codification of a similar rule in Article 23(3) of his last report to the ILC in 1961: ‘A State may not bring a claim on behalf of an individual if the legal bond of nationality is not based on a genuine connexion between the two’ (2 YBILC (1961) 49). See also more recently Orrego Vicuña who has proposed the following rule as one that reflects contemporary ‘realities’ and ‘trends’: ‘The link of nationality to the claimant State must be genuine and effective’, ‘The Changing Law of Nationality Claims’, in ILA, Report of the Sixty-ninth Conference (2000) 646. He does, however, recognize in effect that the rule will have to be applied with ‘greater flexibility and adaptation to changing needs’ (Ibid 638). The ILA in its Resolution 5/2006 endorsed this approach: see <http://www.ila-hq.com.
(22) The Flegenheimer Case (1958), 25 ILR 112, 153; the Salem Case (1932), 2 UNRIAA 1185; Bar-Yaacov (note 4 above) 150–52, 158; Brownlie (note 10 above) 422.
(23) The Flegenheimer Case (1958), 25 ILR 96–112; the Flutie Case, reported in Ralston and Doyle, Venezuelan Arbitrations of 1903 34; Van Panhuys (note 1 above) 153–6.
(24) The Flegenheimer Case (1958), 25 ILR 99, 107 and 110.
(25) For the commentary see ‘Report of the ILC to the General Assembly’ (2004) 30 ff. (<http://www.un.org>). The views of the rapporteur of the ILC expressed in his ‘First Report on Diplomatic Protection’ (2000), UN Doc A/CN.4/506, on his proposed Article 5, which is generally similar to the ILC's Draft Article, are not incompatible with the views expressed by me in this section: see Dugard, Ibid 34–41. He gives an extensive account of the authorities.
(26) Administrative Decision No V, 1925 AJIL 613–14 per Umpire Parker; the Kren Claim (1953) 20 ILR 234; Basis of Discussion No 28 of the Preparatory Committee of the 1930 Hague Codification Conference, 2 YBIL (1956) 225; Geck, ‘Diplomatic Protection,’ EPIL (1992) 1055.
(27) O'Connell, 2 International Law (1970) 1037.
(28) 1925 AJIL at 613–14 per Umpire Parker. See also the Panavezys-Saldutiskis Railway Case (1939), PCIJ Series A/B No 76, 16–17, for a similar approach.
(29) 20 ILR 234.
(30) See Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996) 45–6; Brower and Brueschke, The Iran-United States Claims Tribunal (1998) 76–80, and the cases cited there. In the Diallo Case (Preliminary Objections) the ICJ accepted the requirement that the claimant State's national must have the nationality of the claimant State continuously from the time of the injury to the time of the presentation of the claim, stating that in the case the parties did not dispute this fact: 2007 ICJ Reports para. 41 (<http://www.icj-cij.org>.
(31) Cited in Warbrick, ‘Protection of Nationals Abroad: Current Legal Problems’, 37 ICLQ (1988) 1006.
(32) 77 AJIL (1982) 836.
(33) See Sinclair, ‘Nationality of Claims: British Practice’, 27 BYIL (1950) 127; Dugard (note 25 above), ‘Addendum’, UN DocA/CN.4/506/Add1 3–4.
(34) See Geck (note 18 above) 1055; Wyler, La Règle dite de la continuité de la nationalité dans le contentieux international (1990) 43–8.
(35) (1980), 20 ILM 230.
(36) See Dugard (note 33 above) 6–7.
(37) 37 AIDI (1932) 278.
(38) 51 AIDI (1965-II) 260–2.
(39) Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims (1915) 660–7.
(40) Dugard, (note 33 above) 8 and authorities cited in footnotes 24 and 25 therein.
(41) See Wyler (note 34 above) 53.
(42) Borchard (note 39 above) 663.
(43) See Borchard, Ibid 662–3; Wyler (note 34 above) 91.
(44) ‘La Protection Diplomatique des Individus en Droit International: La Nationalité des Reclamations’, AIDI (1965-I) 72–3.
(45) See discussion of the cases and literature in Briggs, Ibid 24 ff; Wyler (note 34 above) 75 ff; Sinclair (note 33 above) 128 ff; Brownlie (note 10 above) 460 ff; García Amador, The Changing Law of International Claims (1984) 504.
(46) See Administrative Decision No V (1924), 7 UNRIAA 152 ff.
(47) See the Eschauzier Case, 5 UNRIAA 209, where the claim was rejected, because the alien lost her British nationality when she married a US national between the presentation of the claim and the award.
(48) Dugard (note 33 above) 12–13.
(49) 9 UNRIAA 506. See also the Milani Case, 10 UNRIAA 591.
(50) Wyler (note 34 above) 264.
(51) Dugard (note 33 above) 14.
(52) 1970 ICJ Reports 73.
(53) In pursuit of this Dugard proposed to the ILC the following article: 1. Where an injured person has undergone a bona fide change of nationality following an injury, the new State of nationality may exercise diplomatic protection on behalf of that person in respect of the injury, provided that the State of original nationality has not exercised or is not exercising diplomatic protection in respect of the injured person at the date on which the change of nationality occurs.2. This rule applies where the claim has been transferred bona fide to a person or persons possessing the nationality of another State.3. The change of nationality of an injured person or the transfer of the claim to a national of another State does not affect the right of the State of original nationality to bring a claim on its own behalf for injury to its general interests suffered through harm done to the injured person while he or she was still a national of that State.4. Diplomatic protection may not be exercised by a new State of nationality against any previous State of nationality in respect of an injury suffered by a person when he or she was a national of the previous State of nationality ((note 25 above) 42).
(54) 7 ICSID Reports (2005) 485. See also the Eschauzier Claim (1931, GB v Mexico), 5 UNRIAA 207, and authorities cited in Jennings and Watts (eds), 1 Oppenheim's International Law (1992) 512.
(55) The Ebenezer Barston Case in Hackworth, 5 Digest of International Law (1943) 805; the Executors of F Lederer Case in 3 Recueil Decisions des Tribunaux Arbitraux Mixtes 763; the Hawaiian Claims in Nielson, America and British Claims Arbitration (1926) 30.
(56) The Eschauzier Claim (1931, GB v Mexico), 5 UNRIAA 207; the Gleadell Claim (1929, GB v Mexico), 5 Ibid 44; the Kren Claim (1951–1954), US International Claims Commission, 20 ILR 234; but contra the Straub Claim (1951–1954), US International Claims Commission, 20 ILR 228.
(57) The Stevenson Claim (1903, GB v Venezuela), 9 UNRIAA 494; the Bogovic Claim (1951–1954), US International Claims Commission, 20 ILR 156.
(58) The Straub Claim (1951–1954), US International Claims Commission, 20 ILR 228.
(59) The Eschauzier Claim (1931, GB v Mexico), 5 UNRIAA 207. It must be noted that the claims cited in footnotes 55 to 58, which were decided by the US International Claims Commission, were decided by a national claims commission and not by an international tribunal. The exact date of each decision is uncertain but was between 1951 and 1954.
(60) See Article 3 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws: 179 LNTS 89.
(61) Only twenty States are parties to this treaty (referred to herein as the 1930 Hague Convention). The 1960 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, (referred to herein as the 1960 Harvard Draft) does not clearly permit or deny the right of the State of nationality. However, it leans against such a claim by providing in Article 23(5) that; ‘A State is entitled to present a claim of its national arising out of the death of another person only if the person was not a national of the State alleged to be responsible’: see Sohn and Baxter ‘Responsibility of States for Injuries to the Economic Interest of Aliens’, 55 AJIL (1961) 548. A further attempt to formulate a rule on this subject was made by the Institut de droit international in 1965. Article 4(a) of a resolution adopted provided that, ‘An international claim presented by a State for injury suffered by an individual who possesses at the same time the nationalities of both claimant and respondent States may be rejected by the latter and is inadmissible before the court (jurisdiction) seized of the claim’, Resolutions de l'Institut de Droit international, 1957–1991, (1992) 56. I was of the view in 1967 that the law as it stood was that the claim was inadmissible, if the person had the nationality of the respondent State, irrespective of dominance or effectiveness of the other nationality: C F Amerasinghe (note 1 above) (State Responsibility) 63.
(62) See the account in Dugard (note 25 above) paras 128–136. Of the 11 cases there mentioned only in three was the dominant nationality found to be that of the claimant State: the Hein Case (1921), AD 1919–22, No 148; the Blumenthal Case (1923), Recueil des Decisions des Tribunaux Mixtes 616; the Barthez de Monfort Case (1925), AD 1925–26, No 206.
(63) See Dugard (note 25 above) paras 138–140. It is not known what the result would have been had the principle been applied. The tribunals simply decided not to apply the principle.
(64) 1949 ICJ Reports 186.
(65) 1955 ICJ Reports 22.
(66) The key cases were the Mergé Case in the Conciliation Commission (1955), 16 UNRIAA 247 (para V.5), and the Esphanian Case and Case No A/18 in the second chamber of the Iran-US Claims Tribunal (1983), 2 Iran-US CTR at 166 ff and (1984), 5 Ibid 251. The above commission was a conciliation commission where the nationality of claims rule was applicable but, nevertheless, it was not an arbitral body in every respect. In the Iran-US Tribunal in the Esphanian Case the tribunal of three arbitrators described the tribunal as not being the ‘typical exercise of diplomatic protection’ because the State did not espouse claims: (1983), 2 Ibid 165. This, however, is a distinction without a difference. Most of the tribunals in which the nationality of claims rule has been applied to admissibility were similar to the Iran-US tribunal. The rule has been regarded as applicable without a difference or distinction whether the claimant was the State itself or whether persons had locus standi before the tribunal, subject to express provisions to the contrary or modifying the rule, in the constitution of the tribunal. The Iran-US Tribunal clearly had to apply the same rule applicable to adjudications in which States were parties before the tribunal. It is significant that in Case No A/18 the full tribunal of nine (with three dissenting) made no reference to the distinction made earlier by the tribunal of three. The rule applied by the tribunal purported to be the same rule applicable to cases of diplomatic protection in which States were the direct parties, and the correctness of the rule applied must stand or fall by the same criteria applicable to those cases. It has never been denied that the Iran-US Claims Tribunal, in so far as it covered claims by persons against either of the States involved, was adjudicating cases of diplomatic protection to which the nationality of claims rule was applicable subject to the express or implied provisions of the constitutive instruments. The fact that persons were claimants as opposed to their national States, as in the case of the 19th and 20th century claims commissions, made no material difference. However, there were conceivably some other special circumstances connected with the settlement of the disputes brought to the tribunal and which were reflected in the constitutive instruments of the tribunal.
(67) Garcia Amador, (note 1 above) 61, and Dugard, (note 25 above) 42–54. The view is supported by Orrego Vicuña, (note 21 above) 646, as rapporteur for the ILA. The ILA in Resolution 5/2006 Nationality of Claims followed the rapporteur's recommendation (<http://www.ila-hq.com>).
(68) See the writers referred to in Dugard (note 25 above) 49, 52.
(69) See Bar-Yaacov (note 4 above) 64–72, 147–55; Brownlie (note 10 above) 404; Warbrick (note 17above) 1007.
(70) Orrego Vicuña ‘Chile’, in Lauterpacht and Collier, Individual Rights and the State in Foreign Affairs (1977) 141. The implication arises from a Note of the Chilean Consular Department in connection with the protection of Chilean Jews in Germany in 1938. It is not clear, however, whether such persons necessarily had German nationality: see reference in Orrego Vicuña, Ibid 181 note 71.
(71) (2004) 26, para 40, <http://www.icj-cij.org>.
(71) Seidl-Hohenveldern, ‘Federal Republic of Germany’, in Lauterpacht and Collier (eds), Individual Rights and the State in Foreign Affairs: An International Compendium (1977) 247.
(72) Caflisch, ‘Switzerland’, in Ibid 499.
(73) The Nottebohm Case (Second Phase), 1955 ICJ Reports 22.
(74) (1955), 16 UNRIAA 247 (para V.5).
(75) (1984), 5 Iran-US CTR 251.
(76) They were Lagergren, Mangard, Riphagen and from the US, Aldrich, Holtzmann, Mosk. It is questionable whether the opinion of these six arbitrators, admittedly a majority but no more, could establish a good precedent for customary international law in general. First, the context of the Iran-US Claims Tribunal was special in terms of the treatment of nationality in relation to claims. Secondly, the opinion took a position which was contradictory to the real earlier trends and to what was regarded as the better and more authoritative view—and that without a particularly well-reasoned argument of policy in favour of its position.
(77) The dissent of the three Iranian arbitrators is to be found in Case No A/18 (1984), 5 Iran-US CTR 257–337. The original dissent of arbitrator Shafeiei is in the Esphanian Case, (1983), 2 Ibid 178.
(78) These are principally the interests of the injured national State, of the injured alien, and of the defendant State. Each of these interests has been given prominence in the choice of the different relevant rules, as pointed out by me. Indeed, it cannot be said that the interests of a national State and of the injured alien are necessarily given preference always to the detriment of the defendant State. See for a discussion of these matters, C F Amerasinghe (note 1 above) (State Responsibility) 63 ff. As was said there:
It is evident that the rules relating to the diplomatic protection have not been developed by reference to the single principle that the right or interest violated is that of the national State, so that this principle can be called the sole basis of diplomatic protection, in spite of the emphasis given to it in international jurisprudence. The notion that the alien's interest is injured has also played a significant role in the formation of certain rules. Also at times the interest of the defendant State or other national States are given preference to the rights of some national State, … These conflicting interests have been resolved in practice in relation to specific rules by choices in favour of one or the other without any apparent order or scheme referable to a hierarchy of social policy values. Thus, it is not possible to assert with any conclusiveness that one or the other of these interests is necessarily superior to any of the others. (pp 64–5)
See also C F Amerasinghe (note 1 above) (Local Remedies) 43–56 and above. The point is that it is not the protection of the injured person or an injured national State that is always paramount. The systems for the protection of human rights are not in issue. They are generally based on conventions and create obligations owed to all the parties to the specific convention. This is apart from any recognition there may be by general principles of law or customary international law of substantive human rights as such. Earlier it was recognized that the rule that the injured alien must not be a national of the respondent State for any other State to exercise diplomatic protection was fully recognized, as was pointed out by me (note 1 above) (State Responsibility) 63). Any qualification to the rule as thus stated negatively was a weak minority view. Thus, the change that has taken place must be approximately justified by altered circumstances in international society. As far as I know, no such circumstances relating to diplomatic protection can be identified. The fact that a conciliation commission and a group of six judges all from capital exporting countries (the Iran-US Claims Tribunal) that could have a vested interest in asserting the law in the manner it was stated formulated a new rule raises questions about the rule. The fact that such judges purported to assert with firmness a rule that, to say the least, had been in grave doubt, and was supported by less cogent authority than the reverse of the rule, makes it undeniably suspect. Accepting the new rule requires a rejection of the view that the interests of the defendant State were important at all, because the reverse of the rule applied was the only circumstance in fact in which those interests were given a clearly affirmative recognition.
(79) The ‘First Report to the ILC’ (2000) by its rapporteur (note 25 above) 42, supports the rule as enunciated in the Mergé Case and the Iran-US Claims Tribunal Cases. While that report also suggests that on the merits for good reason an award may be denied if the lack of nationality of the respondent has been abused (pp 53–4), this is not a matter for admissibility and does not need to be considered. There are modern authors who support the view taken in that report: see Aldrich (note 30 above) 76–9, Brower and Brueschke (note 30 above) 296–322.
(80) See explanation and discussion in Report of the ILC (2006), UN doc A/61/10, 43 ff and cases there cited both for and against this choice. Such cases were decided both before and after the Mergé Case.
(81) See the de Born Case, (1926) AD 1925–1926, No 205; the Uiterwyk Corporation Case (1988), 19 Iran-US CTR 118; the Asghar Case (1990), 24 Ibid 242–3, among cases decided by the Iran-United States Claims Tribunal.
(82) Article 5, 179 LNTS 89.
(83) See Article 4(b) of the 1965 resolution of the Institut de droit international (note 54 above) 56, Article 23(3) of the 1960 Harvard Draft (note 54 above) 548. See also C F Amerasinghe (note 1 above) (State Responsibility) 63; (note 1 above) (Local Remedies) 50, where the same view is reflected.
(84) The Salem Case (1932), 2 UNRIAA 1188; the Flegenheimer Case (1958), 25 ILR 149; the Stanovic Case (1963), 40 ILR 155; the Mergé Case (1955), 16 UNRIAA 247.
(85) The Dallal Case, (1983), 3 Iran-US CTR 10. See Bederman, ‘Nationality of Individual Claimants before the Iran-United States Claims Tribunal’, 42 ICLQ (1993) 123–4.
(86) The ‘First Report on Diplomatic Protection’ to the ILC (Dugard) in Article 7 adopts the principles stated above without the proviso which is significantly important: (note 25 above) 54.
(87) 1955 ICJ Reports 4 (Second Phase).
(88) See Judge Read's dissenting opinion, Ibid 42. There is no reason to question Judge Read's statement of this fact.
(89) Ibid 23.
(90) Ibid 25–6.
(91) Ibid 26.
(92) Ibid.
(93) Jones, ‘The Nottebohm Case’, 5 ICLQ (1956) 230; Makarov, ‘Das Urteil des Internationalen Gerichtshofes im Fall Nottebohm’, 16 ZAORV (1956) 407; Maury, ‘L'arrêt Nottebohm et la Condition de la nationalité effective’, 23 Zeitschrift für auslandisches und internationales Privatrecht (1958) 515; de Visscher, ‘L'affaire Nottebohm’, 60 RGDIP (1956) 238; Van Panhuys (note 1 above) passim.
(94) The same point was made by me in C F Amerasinghe, ‘The Jurisdiction of the International Centre for the Settlement of Investment Disputes’, 19 IJIL (1979) 202–3 and (note 1 above) (Jurisdiction) 646–7.
(95) 4 UNRIAA 678.
(96) See Van Panhuys (note 1 above) 72.
(97) 989 UNTS 175.
(98) 189 UNTS 150.
(99) Article 1, 360 UNTS 117.
(100) Article 1(A)(2) of the Convention Relating to the Status of Refugees.
(101) The travaux préparatoires of this convention make it clear that ‘stay’ indicates less than durable residence.
(102) See para 16 of the Schedule to the convention.
(103) Legal commentators also support this position: Myers, The Nationality of Ships (1967), 90–108;Dolzer, ‘Diplomatic Protection of Foreign Nationals’ in 1 EPIL (1992) 1068. These authors refer to the practice of States and judicial precedents. See also on State practice, Borchard (note 39 above) 475; O'Connell (note 27 above) 1050.The right of the flag State of a ship as the national State of the ship to claim in respect of damage to the ship or of any unlawful act in regard to the ship is assumed to remain intact, though this matter is not dealt with in the 2004 ILC Draft Articles. The issue of the rights of the national States of the owners of the ship is also not dealt with in the Articles. The law is presumed to remain as it was before, ie that both groups of States have the right of protection.
(104) This view goes back to Ross v McIntyre (1891), 140 US 453. For the UK approach which was similar to that of the US see R v Carr (1882), 10 QBD 85; R v Anderson (1868), 1CCR 165–7; McNair, 2 International Law Opinions (1956) 172.
(105) See Hackworth, 3 Digest of International Law (1942) 418, and 4 Ibid 883–4.
(106) This communication is on file with the Codification Division of the Office of Legal Affairs of the UN: see Dugard, ‘Fifth Report on Diplomatic Protection’ to the ILC, UN Doc A/CN.4/538, 22.
(107) Moore, 3 International Arbitrations 2536.
(108) 29 AJIL (1935) 326. The US in this case argued against the rule.
(109) 1949 ICJ Reports 202–3 and 206–7. There are some international cases which are equivocal. In two involving Germany and Chile as defendants in claims brought by aliens serving on US vessels before Claims Commissions, the claims were rejected because the compromis restricted claims to those of US citizens; see also Richelieu v Spain. These and other cases are cited and discussed in Dugard (note106 above) 23–4.
(110) (1999), ITLOS Reports (1999) 10 (also <http://www.itlos.org>).
(111) Ibid para 98.
(112) Ibid para 103.
(113) Ibid para 104.
(114) Ibid para 105.
(115) Ibid para 106.
(116) Ibid para 107. See the extensive discussion of this case in Dugard (note 106 above) 25–8. See also the Grand Prince Case (Belize v France, 2001), <http://www.itlos.org>.
(117) On this section see the 2006 ILC Draft Article 18 and commentary thereon. Dugard, (note 106above) 29–31, discusses the position of passengers on ships, passengers and crew on aircraft and the crew of spacecraft in terms of whether they should be given the same treatment as ships' crew. In general there is no State practice in this area and he points out that the position of those persons is different from that of a ship's crew, there being an exception for the crew of spacecraft. But he concluded that the law in this area was not ripe for progressive development. The ILC omitted any reference to these situations in its 2006 Draft Articles.
(118) See the discussion in the Barcelona Traction Co Case, ICJ Pleadings (1970) passim.
(119) See the Barcelona Traction Co Case, 1970 ICJ Reports 42–3, where it was said that international law ‘attributes the right of the diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office’. See now also the Diallo Case (Preliminary Objections), 2007 ICJ Reports, para 61 ff (<http://www.icj-cij.org>). What happens when the State of incorporation and the seat of corporate management are not the same was not settled by the Barcelona Traction Co Case judgment.
(120) 1970 ICJ Reports 3.
(121) Belgium's claim was rejected by fifteen votes to one.
(122) Ibid 35.
(123) Ibid 36. See also the Diallo Case (Preliminary Objections), where the right of the national State of shareholders to protect shareholders was recognized where their ‘direct rights’ were infringed. The ICJ also pointed out that what these rights were depended on the internal law of the State of nationality of the corporation: 2007 ICJ Reports, paras 68 ff (<http://www.icj-cij.org>).
(124) 1970 ICJ Reports 39.
(125) Ibid 40.
(126) Ibid 40–1.
(127) Ibid 48. This position has been affirmed as a rule in case law: see eg, the Mexican Eagle Company Case (1938), Cmd. 5758. See also Wortley, ‘The Mexican Oil Dispute 1938–46’, 1957 TGS 15 and cases discussed there.
(128) 1970 ICJ Reports 48.
(129) Ibid 48, 50. For a number of reasons, including the absence of treaty between Canada and Spain conferring jurisdiction on the International Court of Justice, Canada declined to institute proceedings on behalf of the Barcelona Traction Co: see, Ibid 45. In the Diallo Case (Preliminary Objections) as in the Barcelona Traction Co Case, reference was made to the possibility of the protection of shareholders on the grounds of equity infra legem, but, while the courts did not commit itself to the view that this was possible, it found that there was no reason to apply equity in the case before it; 2007 ICJ Reports, paras 82 ff (<http://www.icj-cij.org>).
(130) 1970 ICJ Reports 45, 49.
(131) (Second Phase) 1955 ICJ Reports, 4.
(132) 1970 ICJ Reports 42. The Court recognized on the facts, in addition to incorporation, a ‘genuine link’, although not requiring it as a matter of law.
(133) Ibid 35, 46, 50.
(134) Ibid 48–9.
(135) Ibid 48.
(136) Ibid 38, 50.
(137) Ibid 131.
(138) Judge Fitzmaurice, Ibid 72–5, Judge Jessup, Ibid 191–4, Judge Gros, Ibid 279.
(139) Ibid.
(140) Judge Morelli, Ibid 240–1, Judge Padilla Nervo, Ibid 257, Judge Ammoun, Ibid 318.
(141) Ibid 258.
(142) Judge Fitzmaurice, Ibid 80, Judge Jessup, Ibid 186, Judge Padilla Nervo, Ibid 254, Judge Gros,Ibid 281.
(143) Ibid 36.
(144) Ibid 40–1.
(145) Ibid 48. Another exception may be where the national State of the corporation lacks the capacity to take up its case, as where the State ceases to exist or has no effective government: see Republic of Somalia v Woodhouse (1993) QB 54. The reasoning and conclusions of the court in this case have been criticized: see the writers cited in Dugard ‘Fourth Report on Diplomatic Protection’ to the ILC, UN Doc A/CN.4/530 6–9, and Dugard's views therein. On this section above dealing with the Barcelona Traction Co Case see particularly Dugard, Ibid 2–5.
(146) 1970 ICJ Reports 40–1. See also the separate opinions of Judges Nervo, Ibid 256, and Ammoun,Ibid 319–20. A less stringent test had been used in cases decided before the Barcelona Traction Co Case: see the Delagoa Bay Railway Co Case, Moore, 6 Digest of International Law (1906) 648; the El Triunfo Case (1902), 15 UNRIAA 466; the Baasch & Romer Case (1903), 10 UNRIAA 723.
(147) The Agrotexim Case, ECHR, Series A, No 330-A 25.
(148) See the Delagoa Bay Railway Co Case, Moore, 6 Digest of International Law (1906) 648; the Mexican Eagle Case, Whiteman, 8 Digest of International Law 1272–4; the Romano-Americano Case,Hackworth, 5 Digest of International Law 841; the El Triunfo Case (1902), 15 UNRIAA 467; the Deutsche Amerikanische Petroleum Gesellschaft Oil Tankers Case (1926), 2 UNRIAA 790. Caflisch, La protection des sociétés commerciales et des interest en droit international public (1969); Jones, ‘Claims on Behalf of Nationals who are Shareholders in Foreign Companies’, 26 BYIL (1949) 225, andJiménez de Aréchaga ‘International Responsibility’, in Max Sørensen (ed), Manual of International Law (1968), 580–1, have examined the authorities and offered conclusions.
(149) 1970 ICJ Reports 48. Judges Fitzmaurice (Ibid 72–5), Tanaka (Ibid 134) and Jessup (Ibid 191–3)supported the right of the State of nationality to grant protection when the corporation was injured by the State of incorporation. Judges Fitzmaurice and Jessup did not limit that right to circumstances where incorporation in the respondent State was required as a precondition for doing business in that State. Judges Padilla Nervo (Ibid 257–9), Morelli (Ibid 240–1) and Ammoun (Ibid 318) were opposed to any form of exception.
(150) See the SEDCO Inc Case (1985), 84 ILR 496 (interpreting Article VII of the Algiers Claims Settlement Declaration); the LETCO Case (1987), 26 ILM 652–4 (interpreting Article 25 of the ICSID Convention).
(151) 1989 ICJ Reports 15.
(152) See for this view, Dinstein, ‘Diplomatic Protection of Companies under International Law’, in Wellens (ed), International Law: Theory and Practice (1988) 512. On the avoidance of application of the customary law see the comments of Gill, ‘ELSI Case’, 84 AJIL (1990) 257–8, also Mann, ‘Foreign Investment in the International Court of Justice’, 86 AJIL (1992) 92. On the ELSI Case see generally Stern, ‘La protection diplomatique des investissements internationaux’, JDI (1990) 897.
(153) See further on this, Lowe, ‘Shareholders’ Rights to Control and Manage: From Barcelona Traction to ELSI’, in Ando et al (eds), Liber Amicorum Judge Shigeru Oda (2002) 269; also Dinstein (note 151above).
(154) Contra Murphy, ‘The ELSI Case: an Investment Dispute at the International Court of Justice’, 16 YJIL 420.
(155) See the rules issued by the British government in 1987, published in 37 ICLQ (1988) 1006. Rule IV, in providing that the United Kingdom may take up the claim of a company incorporated in the United Kingdom, expressly states, in the commentary thereto, that it is founded on the Barcelona Traction Co Case.
(156) The following questions were put to States on this subject:In the Barcelona Traction case, the International Court of Justice held that the State in which a company is incorporated and where the registered office is located is entitled to exercise diplomatic protection on behalf of the company. The State of nationality of the shareholders is not entitled to exercise diplomatic protection, except, possibly, where: (a) The shareholders' own rights have been directly injured; (b) The company has ceased to exist in its place of incorporation; (c) The State of incorporation is the State responsible for the commission of an internationally wrongful act in respect of the company. Should the State of nationality of the shareholders be entitled to exercise diplomatic protection in other circumstances? For instance, should the State of nationality of the majority of the shareholders have such a right? Or should the State of nationality of the majority of the shareholders in a company have a secondary right to exercise diplomatic protection? Official Records of the General Assembly, Fifty-seventh session, Supplement No. 10, UN Doc A/57/10, para 28.
(157) Germany described the decision in the Barcelona Traction Co Case as ‘unsatisfactory’ and urged the grant of a subsidiary right of protection to shareholders (UN Doc A/C.6/57/SR.20, paras 25–6). The USA, while supporting the decision, stated that it takes the nationality of shareholders into account in deciding whether to exercise diplomatic protection, and urged that shareholders be protected where the State of nationality is itself responsible for injury to the company (UN Doc A/C.6/57/SR.23, para 52).
(158) Daillier and Pellet (eds), Nguyen Quoc Dinh's Droit International Public (1999) 773; Shaw, International Law (1997) 566; Brownlie, Principles of Public International Law (1998) 491–5;Kooijmans, Internationaal Publiekrecht in Vogelvlucht (2002) 116; Shearer (ed), Starke's International Law (1994) 286–7; Caflisch, ‘The Protection of Corporate Investments Abroad in the Light of the Barcelona Traction Case ’, 31 ZAORV (1971) 196.
(159) According to the United Kingdom's 1985 Rules Applying to International Claims, ‘where a United Kingdom national has an interest, as a shareholder or otherwise, in a company incorporated in another State and of which it is therefore a national, and that State injures the company, Her Majesty's Government may intervene to protect the interests of the United Kingdom national’ (Rule VI), reprinted in 37 ICLQ (1998) 1007.
(160) See Dugard (note 145 above) 12 ff for these options and for the explanation and discussion thereof, with references to authorities.
(161) Principally, see O'Connell (note 27 above) 1041–2; Levy, La Nationalité des sociétés (1984) 183–96; Harris, ‘The Protection of Companies in International Law in the Light of the Nottebohm Case’, 18 ICLQ (1969) 295–301. Decisions of arbitral tribunals show that there is a close correlation between siege social or domicile and incorporation: see Schwarzenberger, 1 International Law (1957), 393–7, after an examination of the Canevaro Case; Scott, 2 Hague Court Reports 284; La Suédoise Grammont v Roller, 3 TAM, 570; the Mexico Plantagen GmbH Case, AD 1932–32, Case No. 135; Flack (GB) v United Mexican States (1929), 5 UNRIAA 61; the Madera Company Case (1929), Ibid 156; the Interoceanic Railway of Mexico Case (1931), Ibid 178.
(162) This view relies heavily on the test of ‘effective control’ for determining the enemy character of corporations. Principally, see Seidl-Hohenveldern, Corporations in and under International Law (1987), 27–9; Daimler Co v Continental Tyre and Rubber Co [1916], 2 AC 307. A similar test has also been employed by the UN in respect of its resolution imposing economic sanctions against Libya: Security Council Rs 883 (1993) of 11 November 1993. See further the discussion of this resolution by the special rapporteur of the ILC in the ‘Fourth Report on Nationality in Relation to the Succession of States’, 2 YBILC (1998) UN Doc A/CN.4/489, paras 15–17. The test was rejected by the ICJ in the Barcelona Traction Co Case, 1970 ICJ Reports 39, and has been criticized as a valueless analogue: O'Connell (note 27 above) 1042. However, it may be a viable test for the diplomatic protection of corporations.
(163) This alternative is supported, inter alia, by Judges Tanaka and Jessup in the Barcelona Traction Co Case, 1970 ICJ Reports 130–3 and 199–202 respectively.
(164) See, inter alia, Judge Fitzmaurice in the Barcelona Traction Co Case, 1970 ICJ Reports 76, Procedures of the UNCC, Decision 7 of the Governing Council, UN Doc S/AC.26/1991/7/Rev. 1 (17/3/1992) para 26.
(165) The alternative was rejected by the ICJ in the Barcelona Traction Co Case, 1970 ICJ Reports 49, and by Judge Padilla Nervo, Ibid 264. However, the position was supported by Judges Tanaka and Fitzmaurice, Ibid 128–31 and 79 respectively. The argument that a multiplicity of proceedings would result was countered by both these judges: Ibid 133–9 and 77 respectively. Support for their view is to be found in Higgins, ‘Case concerning the Barcelona Traction Light and Power Company Ltd’, 11 VJIL (1971) 339, and ‘Panel:—Nationality of Claims—Individuals, Corporations, Stockholders’, 63 ASIL Proceedings (1969) 30.
(166) Nationality Decrees in Tunis and Morocco Opinion (1923), PCIJ Series B No 4. See also the Diallo Case (Preliminary Objections), 2007 ICJ Reports, para 61 ff (<http://www.icj-cij.org>).
(167) Barcelona Traction Co Case, 1970 ICJ Reports 33–4. See also the Diallo Case (Preliminary Objections), 2007 ICJ Reports, para 61 ff (<http://www.icj-cij.org>).
(168) Barcelona Traction Co Case, 1970 ICJ Reports 42.
(169) Ibid. See the Nottebohm Case (Second Phase), 1955 ICJ Reports 22.
(170) 1970 ICJ Reports 42.
(171) Ibid.
(172) Ibid 42–3.
(173) Ibid.
(174) Ibid 49.
(175) See Mixed Claims Commission, United States-Venezuela, constituted under the Protocol of 17 February 1903, the Orinoco Steamship Company Case (1903) 9 UNRIAA 180. Here a company incorporated in the United Kingdom transferred its claim against the Venezuelen Government to a successor company incorporated in the United States. As the treaty establishing the Commission permitted the United States to bring a claim on behalf of its national in such circumstances, the claim was allowed. However, Umpire Barge made it clear that, but for the treaty, the claim would not have been allowed: Ibid 192. See also now Loewen Group Inc. v. U.S.A. (2005) 7 ICSID Reports 484.
(176) See further on this subject the Panevezys–Saldutiskis Railway Case (1939), PCIJ Series A/B No. 76, 18. See also ‘Fourth Report on Nationality in Relation to the Succession of States’, UN Doc. A/CN.4/489, which highlights the difficulties surrounding the nationality of legal persons in relation to the succession of States.
(177) (2005) 7 ICSID Reports (para. 220).
(178) Judges Jessup, 1970 ICJ Reports 193, Gros Ibid 277, and Fitzmaurice, Ibid 101–2, and Judge ad hoc Riphagen, Ibid 345.
(179) See the Kunhardt and Co. Case (1903, USA v. Venezuela), 12 UNRIAA 171 and particularly the dissenting opinion of the Venezuelan Commissioner, Ibid 180; F.W. Flack, on behalf of the Estate of the Late D.L. Flack (Great Britain) v. United Mexican States, Decision No. 10 (1929), 5 UNRIAA 63.
(180) Caflisch, La protection des sociétés commerciales et des intérèst indirects en droit international public (1969) 206–7; Beckett, ‘Diplomatic Claims in Respect of Injuries to Companies’ 17 Transactions of the Grotus Society (1932) 191; Wyler, La Regle Dite de la Continuite de la Nationalité dans le Contentieux International (1990) 197–202.
(181) 1970 ICJ Reports 34–7. The relevant law has been discussed earlier in this chapter.
(182) Ibid 36.
(183) 2007 ICJ Reports, paras 92–3 (<http://www.icj-cij.org>).
(184) 1970 ICJ Reports 36. See also the Agrotexim Case, ECHR, Series A No. 330-A. Both cases affirmed this right, though the issue was not the subject of either case.
(185) 1989 ICJ Reports 15. See now the Diallo Case (Preliminary Objections), 2007 ICJ Reports paras 49 ff (<http://www.icj-cij.org>). In this case it was pointed out that the right of protection of direct rights of shareholders was no more than the right to protect nationals as such, not being derived from the right to protect the corporation.
(186) In his separate opinion in the ELSI Case Judge Oda wrote of the ‘general principles of law concerning companies’ in the context of shareholders' rights: 1989 ICJ Reports 87–8. See on shareholders' rights, Vaughan Lowe, ‘Shareholders' Rights to Control and Manage: From Barcelona Traction to ELSI’ in Liber Amicorum Shigeru Oda (2002) 269–84.
(187) Beale, 2 Conflict of Laws (1935) para 120.2.
(188) See for the theories Wolff, ‘On the Nature of Legal Persons’ 54 LQR (938) 496 ff.
(189) 1970 ICJ Reports 34–5.
(190) Case 81/87, The Queen v Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust, 1988 ECR para 19.
(191) On history dating back to Roman Law, see Hahlo and Kahn, The South African Legal System and its Background (1968) 104–5.
(192) Dugard, ‘Fourth Report on Diplomatic Protection’ to the ILC, Addendum, UN Doc/A/CN.4/530/Add/1, 5 ff, comments that it is for this reason that writers on both public and private international law largely confine their consideration of legal persons in the context of international law to the corporation—the commercial, profit-making enterprise whose capital is represented by shares, in respect of which there is a firm distinction between the separate entity of the corporation and the shareholders, with limited liability attaching to the latter.
(193) There is a vast literature on the law governing the protection of foreign investment. The ICSID was created for the settlement of foreign investment disputes. On foreign investment and its protection see, recently, eg Sornarajah, The International Law of Foreign Investment (2004).
(194) Dugard (note 192 above) 6–7, and ‘Report of the ILC 2004’ 66–7, <http://www.un.org>.
(195) In the German Interests in Polish Upper Silesia (Merits) Case (1926), PCIJ Series A, No 7, 73–5, the PCIJ held that the commune of Ratibor fell within the category of ‘German national’ within the meaning of the German-Polish Convention concerning Upper Silesia of 1922.
(196) In the Appeal from a Judgment of the Czechoslovak-Hungarian Mixed Tribunal (Peter Pázmány University v Czechoslovakia) Case (1932), PCIJ Series A/B, No 61 208, 227–32, the Permanent Court held that the Peter Pázmány University was a Hungarian national in terms of Article 250 of the Treaty of Trianon and therefore entitled to the restitution of property belonging to it.
(197) There are conflicting views on non-governmental organizations and the possibility of diplomatic protection for them, as legal persons with a nationality: see for a contrary view to Dugard's, Doehring, ‘Diplomatic Protection of Non-Governmental Organizations’ in El derecho internacional en un mundo en transformación: liber Amicorum: en homenaje al professor Eduardo Jiménez de Aréchaga (1994) 571–80.
(198) Dorresteijn, Kuiper and Morse, European Corporate Law (1994) 13.
(199) Council Regulation (EEC) No. 2137/85 of 25 July 1985 on the European Economic Interest Grouping, OJ No. L 199, 31/07/1985, 1.
(200) See Dorresteijn, Kuiper and Morse (note 198 above) 25–6, where the German Kommanditgesellschaft auf Aktien is referred to and discussed.
(201) On the issue of the national state's rights in connection with shareholders of a corporation and of partners, the ILA in Resolution No. 5/2006 decided that: 12. Shareholders of a foreign company may be protected by the state of their nationality if their rights have been directly infringed, as well as in other special circumstances where they would otherwise be deprived of protection. 13. Shareholders of a foreign company may also be protected by the state of their nationality for wrongs affecting such company if the state of nationality of the company is unable or unwilling to exercise such protection or is the defendant state. 14. Control of a foreign company by shareholders of a different nationality, may entitle the state of nationality of such shareholders to exercise diplomatic protection on their behalf or otherwise to consider the company as having its nationality. 15. If a company or partnership is prevented from claiming because of its nationality, shareholders or partners not so affected may claim in proportion to their interest in such company, including indirect or minority interest, or otherwise be entitled to diplomatic protection by the state of their nationality, particularly if incorporation in the host state has been required by that state as a condition of conducting business there. (<http://www.ila-hq.com>) These conclusions were based on the examination of the matter by Orrego Vicuña (note 21 above) 642 ff, and on the conclusions reached by him, Ibid 646–7. The conclusions go beyond what was recommended by the ILC in its 2006 Draft Articles. The ILC's approach is acceptable.
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