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The situation in which the incidence of the rule has been questioned relates to the so-called ‘direct injury’. What is implied in this concept is that the injury directly affects the litigating State, even though an alien may be involved, so that, while the latter is concerned indirectly in the legal proceeding, the State is really protecting its own interests, apart from those centering around the right of diplomatic protection, rather than those of the alien. There are very few judicially decided cases on this issue, while there has been some exchange of arguments on the subject before the ICJ and there have been views impliedly expressed in separate and dissenting opinions in the ICJ.
In both the Norwegian Loans Case and the Interhandel Case, the applicant governments argued that there had been a direct injury to the State which resulted (p. 173) in the irrelevance of the rule of local remedies. In the former case, the French government referred in its observations to ‘ le caractère internationa1 du différend qui s'est élevé directement entre les deux Etats ’, 115 and stated that ‘ une telle réclamation, d'Etat à Etat, … n'a pas été soumise a des recours internes ’. 116 The Norwegian government did not deny that there could be situations in which the rule of local remedies was inapplicable because of the nature of the dispute, but contested the contention that the situation confronting the court involved a direct injury and not a dispute concerning essentially the obligations of Norway relative to the service of its debts owed to French bondholders which basically activated the rule of local remedies. 117
In the Interhandel Case, the Swiss government, while accepting that in principle the rule of local remedies was applicable when an alien was injured, submitted that the rule was not applicable in the case before the court, because the injury ‘ constitue une violation directe du droit international et lése immédiatement l'Etat demandeur ’. 118 It further emphasized that in the instant case ‘ le dommage a été causé directement à l'Etat lésé. ’ 119 The US government seems to have ignored the issue in its entirety, concentrating its arguments on the fulfilment of the requirements of the rule, because it took the view that the rule was applicable in the case and that there was no possibility that it could be excluded in the circumstances. 120
In the Aerial Incident Case, the government of Israel observed that the rule of local remedies was inapplicable because the respondent State had violated a right directly vested in the applicant State,121 thus raising the argument based on the direct injury. The Bulgarian government did not deny the principle that the rule could be excluded where there was a proper direct injury but implicitly took the view that the situation in the case was not one in which the rule could be avoided. 122
In the Arrest Warrant of 11 April 2000 Case, the ICJ held that, where there is a direct injury to the State, even though an alien has been harmed, the rule of local remedies does not apply. The court held as follows:
The Court notes that the Congo has never sought to invoke before it Mr. Yerodia's personal rights. It considers that, despite the change in professional situation of Mr. Yerodia, the character of the dispute submitted to the Court by means of the Application has not changed: the dispute still concerns the lawfulness of the arrest warrant issued on 11 April 2000 against a person who was at the time Minister for Foreign Affairs of the Congo, (p. 174) and the question whether the rights of the Congo have or have not been violated by that warrant. As the Congo is not acting in the context of protection of one of its nationals, Belgium cannot rely upon the rules relating to the exhaustion of local remedies. 123
It may be concluded from the evidence presented above that there are judicial precedents and State practice which generally support the proposition that a direct injury to the injured State could affect the incidence of the rule where the rights of aliens are concerned by making it inapplicable, however direct injury is defined.
To add to the supporting evidence, there may be mentioned the opinions of legal commentators who either expressly or impliedly take the view that the direct injury is a valid reason for excluding the application of the rule of local remedies, even though an alien may have been injured. 124
Thus, there is no reason to question the validity of the position which postulates that the rule of local remedies does not become relevant where there is a direct injury to a State, even though there may also be an infringement of the rights of one of its nationals.
The ICJ has also given indication of what is a direct injury which would result in the rule of local remedies not being applicable to a situation involving an alien. The court has, further, given a negative indication of what the direct injury is not. On the other hand, individual judges have expressed positive views on what could constitute a direct injury, although their views either conflict with those of the court and are therefore unacceptable, or stand by themselves in circumstances in which the court has not expressed a view on the matter, so that they need to be evaluated in terms of principle.
As emerges from the Arrest Warrant of 11 April 2000 Case, where the issue is whether the rights of a State have been violated in a situation in which the State is not acting in the context of the protection of one of its nationals, the rules relating to the exhaustion of local remedies cannot be relied on by the (p. 175) respondent State. 125 This is a positive statement of what is at the heart of the exception of the direct injury.
In the Interhandel Case one issue was whether the US objection that local remedies had not been exhausted in relation to the taking of the property of Interhandel, a national of the applicant Swiss government, should be upheld. The arguments raised by the Swiss government included one based on the direct injury exclusion. The court said that for the reason adduced by the Swiss government the dispute referred to was not deprived:
of the character of a dispute in which the Swiss Government appears as having adopted the cause of its national, Interhandel, for the purpose of securing the restitution to that company of assets vested by the Government of the United States. This is one of the many cases which give rise to the application of the rule of exhaustion of local remedies. 126
The Swiss government had argued that the case involved non-execution of an international judgment given under an international agreement, which in its view was a direct injury.
It is clear that what the court did was to reject the contention that, where an injury to an alien is caused in the course of violating an international judgment given under an international agreement between the respondent and applicant States, the injury caused in that way per se resulted in a direct injury which would obviate the need to exhaust local remedies. Thus, there was here a negative pronouncement on what would not constitute a direct injury. It must now be taken as settled that the violation of an international judgment or an international agreement, binding upon both the host State and the alien's national State, does not per se cause the act which injures an alien to become a direct injury to the alien's national State.
A chamber of the ICJ held in the ELSI Case that the violation of a treaty does not necessarily exclude the application of the rule of local remedies on the basis that the injury caused is direct. 127 In that case it was found that there was no other injury which was distinct from and independent of that which arose from the violation of the treaty in regard to the entities in respect of which diplomatic protection was being exercised.
The view of the ICJ, in addition to its negative descriptions of the direct injury, is that the intervention of the injured State must be ‘in the context of the protection of one of its nationals’, if the local remedies rule is to be applicable.
Apart from the pleadings in the two cases discussed above, there is one other case in which the issue of the direct injury was raised but not decided either by (p. 176) the court or in separate or dissenting opinions, because the case was dismissed on the basis of another preliminary objection and because neither the court nor the judges giving separate or dissenting opinions touched on the objection based on the rule of local remedies. The pleadings in this case may be considered. The Aerial Incident Case arose out of the shooting down by Bulgaria of an Israeli civilian plane that had penetrated into Bulgarian airspace without authorization. In answering the Bulgarian objection based on the local remedies rule, the Israeli government stated in its observations:
The contention fails to appreciate the nature of the present case. From the fact that 4X-AKC was registered in Israel … and was wearing the Israel colours it is the State of Israel which is directly and primarily injured by the improper actions of the military forces of the Bulgarian State acting jure imperii. Local remedies are therefore irrelevant, and the particulars of claims contained in Annexes 40, 41 and 42 of the Memorial are also not relevant except in connection with the calculation of pecuniary damages the duty to pay which is one of the consequences of the breach of international law on the part of Bulgaria. 128
The basis of the contention of the Israeli government was explained more fully in the oral argument:
the character of this case as a whole is that the Bulgarian act of which complaint is made affects Israel in its quality of a State. It is the international personality of Israel which has been injured—and sorely injured—by this breach of international law. The action of the Bulgarian authorities has violated rights which are the intrinsic attribute of Israel as a State, the right that an Israel aircraft going about its lawful business should not be improperly obstructed or otherwise interfered with, and certainly not destroyed, in the course of its voyage, and its innocent occupants exposed to the gravest terror and danger … This is not a case in which the injuries to the individual preceded the injury to the State and in which the injury to the individual forms the substance, in fact and in law, of the injury to the State. 129
The Israeli argument was based on the theory that the alleged injury was primarily to the sovereignty of Israel made manifest in the nationality colours and markings on the plane which was shot down, and not to the Israeli nationals; the injury to Israel preceded the injury to the aliens and, therefore, this was not a case of diplomatic protection; the claims on behalf of the airline company and the affected individuals were subsidiary to the main claim which related to the violation of the rights of the State of Israel. In principle, the argument that there must be a primary injury to the State rather than to the alien in order that a direct injury be committed is a reasonable one. The next question, however, is whether in the circumstances of the case there was such a primary injury to the State of Israel. Both the principal idea and the latter question will be considered after a look is taken at the legal commentators on the subject.
(p. 177) One such commentator who discussed the matter with State responsibility in general in mind, and not particularly in the context of the rule of local remedies, has stated:
Nevertheless, various situations in the history of international claims reveal that in addition to the rights of its nationals a state has, in its relations with other states, certain rights which appertain to it in its collective or corporate capacity. The typical cases are those in which injury is done to an official of the state, particularly a consular or diplomatic official. The recognition accorded their special status in traditional international law is extended because of their representative character and not because of their status as individuals, although a supplementary claim may lie for the injury to the individual as such … International tribunals have frequently distinguished between a general injury to a state and specific damage. 130
The writer gives many examples of injuries to consular or diplomatic officials but also mentions other injuries, such as damage caused to State-owned ships, which could be considered direct injuries.
A list of direct injuries might be useful, but it would be very difficult to compile one. Further, a list cannot be exclusive, as room must be left for the inclusion of situations which may not be foreseeable at the time the catalogue is made. What is more important is that some general legal principle be evolved which would govern the situation.
The question has been examined by a legal commentator who has expressed the general view that:
The principal reason for the non-applicability of the rule of exhaustion of local remedies to cases of direct injury is that in such cases the injured State represents principally its own interests rather than the interests of its nationals and is the real claimant …
An attempt to formulate a general theoretical distinction between cases of direct injury and cases of diplomatic protection is bound to be difficult. In the first place it should be observed that there is an extremely close connexion between all the facts of a given case and the classification of that case as one belonging to either of these two categories … most instances of direct injury contain, in a certain degree, also elements of diplomatic protection … It is suggested that the classification of a case as one of direct injury or as one of diplomatic protection depends on the element or elements which are preponderant. It is further suggested that once a case has been classified in this way, the international claim, including all its elements, must generally be regarded as a unity and may not be split into its constituent elements, such as those of direct injury and those of diplomatic protection. 131
As general considerations these are relevant and basically do not create problems. The writer then suggests that regard must be had to two main factors, namely, the (p. 178) subject of the dispute or the action impugned in the proceedings and the nature of the claim. 132
This approach poses certain problems. For example, in determining whether the subject of the dispute falls into the category of a direct injury, the writer suggests that violations of treaties generally fall into this category. But this is prima facie not the case, as is shown by the Interhandel Case. Further, the alternative request of the Swiss government in that case was for a declaration that there was an obligation to settle the dispute by arbitration or conciliation. 133 The claim clearly concerned the right of the Swiss government to an arbitration or a conciliation procedure and did not in substance concern the right of the Swiss government to proper treatment for its nationals. A very real object of the Swiss government was the securing of its right to arbitration or conciliation, although it may be said that the ultimate object was the protection of its right to the proper treatment of its nationals. On one interpretation of the ‘real object or interest’ of this claim it was possible to find that the alternative request was to secure a different international right from the mere protection of nationals to which the State was entitled. 134 The court, however, did advert to the object of the claim and stated that:
One interest and one alone, that of Interhandel, which has led the latter to institute and to resume proceedings before the United States courts, has induced the Swiss Government to institute international proceedings. This interest is the basis for the present claim and should determine the scope of the action brought before the Court by the Swiss Government in its alternative form as well as in its principal form. On the other hand, the grounds on which the rule of the exhaustion of local remedies is based are the same, whether in the case of an international court, arbitral or conciliation commission. In these circumstances the Court considers that any distinction so far as the rule of exhaustion of local remedies is concerned between the various claims or between the various tribunals is unfounded. 135
Although ‘objects and interests’ were referred to, it would seem that the court ultimately took the simple view that the rule of exhaustion of local remedies (p. 179) would have prevented an action being taken for the determination of the main question before an arbitral or conciliation commission just as much as before an international court. However, at least obiter the court did refer to ‘objects and interests’ as being relevant to the determination of the question whether the rule of exhaustion is applicable. Judge Basdevant, on the other hand, in a declaration laid emphasis on the ‘subject of the dispute’ as the criterion of the validity of the objections put forward. 136
While there is some conflict of opinion on the proper criterion, it would seem that the concept of the ‘subject of the dispute’ is not entirely adequate, if it refers to categories of acts. On the other hand, the ‘nature of the claim’, defined as being determined by the ‘real objects and interests’ of a State, would seem to come closer to a satisfactory solution of the problem. The important point is to avoid giving the claimant's formulation of the claim too much weight so as to blur the true nature of the claim. Thus, a possible refinement of this approach may be suggested. While ‘objects and interests’ of a State in bringing a particular claim may be relevant, it would seem that the real question concerns not so much the ‘nature of the claim’ as the ‘nature of the injury or right violated’ on which the claim is based. In so far as the former, as determined by the real objects and interests of the State, depends on the latter it becomes of relevance. It is the ‘real objects and interests’, which are the essence of the injury committed or the right violated, that govern the answer to the question whether local remedies should have been exhausted. This is so, because ultimately the claim, whatever it may be, depends on the right violated. The rule of exhaustion relates to the right violated or the injury committed and not to the claim based on it as such, which reflects a secondary or remedial right. It is also the essence of the substantive right violated, as determined by the objects and interests promoted therein, that is of importance.
That an international right belonging to a State has been violated, as has been seen, does not necessarily result in the exclusion of the rule. Indeed, an injury to an alien which violates international law is also a violation of his State's right. What is required is a further inquiry into the essence of the State's right. If the State's right in its essence has for its object the protection of its nationals as such, and if this is the main interest sought from it, it may be concluded that the rule of exhaustion applies to it. Hence, a claim based on its violation, whatever the form of that claim, cannot be espoused until local remedies have been exhausted. The claim may be for an apology or for an indemnity for damage caused to an alien, or merely damages for the insult to the alien's State, but this would not make a difference if the essence of the substantive right violated is the right to the protection of the alien. Conversely, if the essence of the right violated is different, then the rule of local remedies would not apply to a claim based on that wrong. Thus, where a diplomat is injured by a State, the diplomat's State can assert that (p. 180) a right has been violated which has for its object the carrying on of functions of State and not merely the protection of nationals. In such a case, no local remedies need be exhausted in respect of any claim based on that violation of international law, although it may be that a claim might be made which purports to recover damages for the personal loss suffered by the diplomat, an alien. Further, it may be that in certain circumstances it is necessary for an international court to weigh conflicting interests and objects behind a substantive right so as to determine whether the predominant interest is that of protecting a national. 137 It is certain that the fact that the protective right is embodied in a treaty does not make it any less a protective right, as was seen above.
This approach is compatible with Judge Basdevant's theory which stresses the subject of a dispute, for the substantive right is, indeed, the subject of the dispute. However, it goes a little further in attaching importance to the objects and interests which form the essence of that right (not of the claim, as such). Also, it is compatible with the theory of ‘objects and interests’ propounded obiter in the Interhandel Case, which may in fact seem to support it. Thus, it is the objects and interests underlying a right that really matter, although the claim may in the way it is formulated not be relevant.
That this view of the position is tenable is supported by the fact that, in cases of injury to aliens where local remedies are exhausted and adequate redress is obtained by the injured alien, the delinquent State's responsibility is completely discharged and all claims arising from the injury are extinguished. There is no room for a claim of damages for the international injury to the alien's State or for an apology based on the fact that the alien's State also suffered injury. This shows that, where local remedies must be exhausted, it is the aspect of the State's right that involves protection of the alien which is given emphasis. The protective interest which is inherent in the substantive right that an alien should not be injured is, thus, rightly used as the determining factor in the incidence of the rule of local remedies.
The above approach is best supported by the view expressed rather succinctly by the ICJ in the Arrest Warrant of 11 April 2000 Case, where it was stated that:
As the Congo is not acting in the context of the protection of one of its nationals, Belgium cannot rely upon the rules relating to the exhaustion of local remedies. 138
(p. 181) It is quite clear that this statement emphasizes the ‘essence’ of the right violated, which is substantially what matters, as is pointed out above, insofar as it points to the ‘context of the protection of one of its nationals’ as being what is relevant to the incidence of the rule of local remedies. 139 The statement also supports the further conclusion arrived at above that other considerations such as the ‘subject of the dispute’ without more and the ‘nature of the claim’, as formulated, are not as such relevant. On the other hand, the ‘real objects and interests’ of the State, adequately defined, may be synonymous with the ‘essence of the right’ infringed.
The ILC 2006 Draft Article 14(3) refers to the claim being brought ‘preponderantly on the basis of an injury to a national … ’ 140 for the rule of local remedies to be applicable. This is an adequate and positive general characterization of the basis for the incidence of the rule and implies that the converse is true, namely that, where the claim is based preponderantly on an injury to the State and not to a national, the rule of local remedies is not applicable. 141 The explanation of the ‘direct’ injury to the State in the commentary 142 correctly refers to the possibility of ‘mixed’ claims and to the preponderance of the ‘direct’ element, in order that the rule be applicable. It additionally refers as a test of an indirect claim to ‘whether the claim would not have been brought but for the injury to the national’. But all this having been said, it is really the nature of the ‘right’ violated as being preponderantly one relating to an alien or his property that needs to be considered in determining the indirectness of the injury.
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