COPYRIGHT AND CITATION CONSIDERATIONS OF A THESIS ...

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COPYRIGHT AND CITATION CONSIDERATIONS OF A THESIS/ DISSERTATION

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DIPLOMATIC PROTECTION IN THE JURISPRUDENCE OF THE INTERNATIONAL

COURT OF JUSTICE AND THE SOUTH AFRICAN LAW.

BY

NDUKA ESTHER AKWUGO

201112335

Dissertation presented in partial fulfillment of the requirement for the degree of

MASTERS IN INTERNATIONAL LAW

Supervised by Prof. H. Strydom

At the

FACULTY OF LAW

UNIVERSITY OF JOHANNESBURG

2013

III

DEDICATION

This work is dedicated to anyone who has ever left their country to a foreign country, especially those

who have been treated unjustly just because he or she is a foreigner in a particular country. There is a

saying that 'there is no place like home'.

IV

ACKNOWLEDGEMENT

I would like to express my sincere gratitude to my Lecturer and Supervisor Prof. H. Strydom for

all the useful comments, remarks and assistance throughout the time of my study and in doing

this work. I will also like to thank the Staff members of the Law Faculty especially Mrs. Van

Wyk for their unreserved assistance during my work. The University Library Staff were also of

immense help.

I will always be indebted to my lovely family, especially my husband, for all their support and

encouragement throughout the duration and completion of this work. I thank and love you all.

Above all I thank the Almighty God for His grace and strength that He constantly showers on

me. I could not have achieved this much without you.

V

Contents INTRODUCTION ................................................................................................................................... 6

Definition ......................................................................................................................................... 7

What is Diplomatic Protection? ........................................................................................................ 8

CHAPTER ONE – GROWTH AND DEVELOPMENT ................................................................................... 9

1.1 Introduction ......................................................................................................................... 9

1.2 Historical Development ........................................................................................................ 9

CHAPTER TWO - NATIONALITY ISSUES ............................................................................................... 19

2.1 Introduction ....................................................................................................................... 19

2.2 Key Issues Relating to Nationality ....................................................................................... 19

2.3 Right to Diplomatic Protection ........................................................................................... 28

CHAPTER THREE – THE LOCAL REMEDY RULE ..................................................................................... 37

3.1 Introduction ....................................................................................................................... 37

3.2 The Scope of Local Remedy Rule ........................................................................................ 37

CHAPER FOUR – TREATMENT OF ALIEN ............................................................................................. 42

4.1 Introduction ....................................................................................................................... 42

4.2 Standard of Treatment of Aliens ......................................................................................... 42

4.3 Expulsion of Aliens ............................................................................................................. 44

4.4 Consular Protection ............................................................................................................ 46

4.5 Expropriation of Foreign Property ...................................................................................... 49

CONCLUSION ..................................................................................................................................... 53

BIBLIOGRAPHY ................................................................................................................................... 55

6

INTRODUCTION

This thesis is based on the jurisprudence of the International Court of Justice viz a viz the South

African law and practices as it relates to diplomatic protection of nationals or corporate entities

who encounter problem with the law in a foreign country.

How the concept of diplomatic protection has assisted individuals and corporate entities who

wish to go to a foreign country for whatever reason to feel free and relaxed knowing that their

lives and property are protected.

The expose examines the rights of individuals to diplomatic protection in international law in

comparison with the rights of nationals to request for diplomatic protection in South Africa.

The questions posed are; what is the liability of the state to its nationals, what level of

responsibility is to be exhibited by the state when providing diplomatic protection and do such

nationals have a right to demand to be protected in international law and or municipal law.

Chapter one will examine the growth and historical development of diplomatic protection and

the position as it is today.

Chapter two will deal with nationality issues, this is because to determine who will be the

beneficiary of diplomatic protection nationality must first be determined. The issues to be

discussed in this chapter are: acquisition of nationality, double or multiple nationalities,

continuity of nationality, loss of nationality, nationality of a Corporation and its shareholders,

stateless persons and refugees, and the right to diplomatic protection.

In answering the question of state responsibility, chapter three will examine the local remedy

rules. This is because local remedies will have to be exhausted before the state can intervene.

7

Chapter four will examine the treatment of alien which include expulsion of alien, expropriation

of foreign property, and consular protection.

Various attempts have been made to define Diplomatic protection, but there has not been a

generally accepted definition. Some of these definitions are highlighted below. A description is

also provided below to help with the understanding and scope of diplomatic protection.

Definition

Joseph Cuthbert in his book defined diplomatic protection as “a procedure for giving effect to

state responsibility involving breaches of international law arising out of legal injuries to the

person or property of the citizen of a state”.1

The 2006 Draft Articles on Diplomatic Protection defines diplomatic protection as “consisting of

the invocation by a state, through diplomatic action or other means of peaceful settlement, of the

responsibility of another state for an injury caused by an internationally wrongful act of that state

to a natural or legal person that is a national of the former state with a view to the

implementation of such responsibility”.2

Dugard in his book, International Law A South African Perspective refers to diplomatic

protection as an „indirect state responsibility‟. He describes indirect state responsibility as a

situation which “occurs when a state injures the person or property of a foreign national within

its territory. It incurs responsibility because of its failure to treat the foreign national according to

the minimum standard of justice required for the treatment of aliens.3

1 Cuthbert National and Diplomatic protection (1969) 1.

2 Art. 1 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006.

3 Dugard International Law A South African Perspective (2011) 281.

8

In my humble opinion, diplomatic protection is an indirect responsibility of one State to the other

where the rights of one of its nationals or corporate entity is being violated by another State

when in that other State.

What is Diplomatic Protection?

When an individual travels to a foreign country for whatever reason, and encounters problem

with the law of that country, he or she has a right to be protected by his or her own home state

through the home state consulate. A state is therefore entitled as of right to protect its nationals

abroad. This means that a state has the right to ensure that another state treats its own nationals in

accordance with binding treaties between the states or where there is no treaty, that foreign

nationals are treated with the minimum standards laid down in customary international law. In

case of a violation of this right, a state has to take into consideration several factors such as

whether the individual was informed of his or her right to notification and access to the home

state consulate in that foreign country as provided for under Article 36(1)(b) of the Vienna

Convention on Consular Relations; whether the national has exhausted the local remedies

available; whether the national can satisfy the nationality of claims rule; whether pursuing the

case would be in the interest of that State etc. Apart from natural persons, legal entities can also

enjoy diplomatic protection. It is therefore safe to say that the state can decide to take action to

protect its nationals, but has no legal duty to do so. The International Court of Justice in the

Barcelona Traction Case stated that: “By emphasizing the absence of any express denial of the

right conversely implies the admission that there is no rule of international law which expressly

confers such a duty on the State”. 4

4 Barcelona Traction case (2

nd phase) 46 ILR 178(1970) 211.

9

CHAPTER ONE – GROWTH AND DEVELOPMENT

1.1 Introduction

This chapter will examine the origin and the traditional concept of diplomatic protection, the

growth and development of the doctrine through cases as decided by the International Court of

Justice and the position as it stands today.

1.2 Historical Development

The writing of the Swiss Juris Emmerich de Vattel in 1758, on diplomatic protection, was the

origin of the doctrine. He formulated the theory on the right of a state to protect its citizens who

have suffered injury abroad.5

“Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this

citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor,

and, if possible, oblige him to make full reparation; since otherwise the citizen would not

obtain the great end of the civil association, which is, safety”.6

The traditional concept of diplomatic protection was such that only states and not individuals

were subjects under international law. Diplomatic protection is seen as a right of the state and not

of the individuals who have been wronged under international law. An injury to an alien is

considered to be an indirect injury to his home state and in taking up his case the state is seen as

asserting its own rights. In the Mavrommatis Palestine Concessions Case of 1924, the

International Court of Justice stated that: “By taking up the case of one of its subjects and by

resorting to diplomatic action or international judicial proceedings on his behalf, a State is in

reality asserting its own rights-its right to ensure in the person of its subjects respect for the rules

of international law”.7

5 Borchard The Diplomatic Protection of Citizens Abroad or The Law of International Claims (1915) 351.

6Vattel Law of Nations 1758 (Book II) Chap. VI (English Translation). Accessed from http:// earthlink.net/-

dybel/Documents/lawofnations,vattel.htm on 17th

April, 2012 at 11:53. 7 Mavrommatis Palestine Concessions Case (Greece v. United Kingdom) PCIJ Reports, Series A, No 2 (1924) 12 as

cited by Dugard International Law A South African Perspective (2011) 281. This was repeated in Panevezys

10

The above principle from the Mavrommatis Case, as stated by Amerasinghe in his book, is

“apparently derived from the inadequate theory that States alone are subjects of international

law”.8 But this traditional principle on the law of treatment of aliens and diplomatic protection

has continuously been addressed and debated over the years in different cases. This was due to

the unclear rights of individuals in international law and the implication of human rights for the

purposes of diplomatic protection. Different cases will be addressed below to determine if the

Mavrommatis Principle is still effective today or whether there is a progression or a change from

this principle.

In the Nottebohm Case of 1955,9 Mr. Nottebohm was born in 1881 in Germany. He later

migrated to Guatemala in 1905 where he established a successful business, a family and his

social life. He sparingly visited Germany but his business, family and his social life were in

Guatemala. While on a visit to Liechtenstein in 1939, he obtained Liechtenstein nationality

fearing that Guatemala may declare war on Germany. The three year resident condition for

granting nationality was waived. He then returned home to Guatemala. In 1945, Guatemala did

declare war on Germany, Nottebohm was arrested as a result of war measures; his property

confiscated and he was prohibited from re-entering Guatemala after the war. Liechtenstein then

instituted an action against Guatemala on Nottebohm‟s behalf in 1951, claiming compensation

from Guatemala for violating their obligation to Liechtenstein under international law by

confiscating Nottebohm‟s property without compensation, arresting, expelling and refusing him

entry into Guatemala.

The issue before the International Court of Justice was the admissibility of the claim by

Liechtenstein in respect of Nottebohm. To decide upon this admissibility, the court must

ascertain whether the nationality conferred on Nottebohm by Liechtenstein by way of

naturalization can be validly invoked against Guatemala and whether Liechtenstein has a

Saldutiskis Railway Case (1939) 9 ILR 308 at 309. Also the Commentary to Article 1 of the international Law Commission’s Draft Article on Diplomatic Protection, 2006. 8 Amerasinghe State Responsibility for Injuries to Aliens (1967) 56.

9 Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349.

11

sufficient title to the exercise of protection in respect of Nottebohm. The Court before addressing

this issue recognized that diplomatic protection constitutes measures for the defense of the right

of the state as was established in the Mavrommatis Palestine Concession Case by stating that:

“by taking up the case of one of its subjects and by resorting to diplomatic action or international

judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to

ensure, in the person of its subjects, respects for the rules of international law”.10

In determining the issue of Nottebohm‟s nationality, the Court, noted that: “It is for

Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating

to the acquisition of its nationality, and to confer that nationality by naturalization granted by its

own organs in accordance with that legislation”.11

But there must be in existence a connection or

a link between the state and the person of which nationality is to be granted.

“[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine

connection of existence, interests and sentiments, together with the existence of

reciprocal rights and duties. It may be said to constitute the juridical expression of the

fact that the individual upon whom it is conferred, either directly by the law or as the

result of an act of the authorities, is in fact more closely connected with the population of

the State conferring nationality than with that of any other State”.12

Factors that may be considered as constituting genuine connections are: the habitual residence of

the individual, centre of his interest/business, family ties, participation in public life, attachment

to the country etc.13

The Court had to determine whether there is an existence of a factual connection between

Nottebohm and Liechtenstein so that it may be said to be sufficient and preponderant to any

other connection he may have with any other state. The Court noted that as at the time he applied

for naturalization in Liechtenstein, he was still a German national living in Guatemala and had

carried on his activities there for 34 years. The connection he had with Liechtenstein was an

10

Ibid at 360. 11

Ibid at 357. 12

Ibid at 360. 13

Ibid at 359.

12

extremely tenuous one. He had no home and never resided in Liechtenstein for a prolonged time.

In fact, he was only visiting the country when the application was made. He had no intention to

settle in Liechtenstein even after the nationality was granted to him.

“These facts clearly established, 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 in any way alter the manner of life of the person

upon whom it 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”.14

In the Barcelona Traction Judgment of 1970,15

Barcelona Traction, Light and Power Company

Limited, was a holding company incorporated and with its head office in Toronto, Canada. For

the purpose of creating and developing an electric power production and distribution system in

Catalonia (Spain), the company formed a number of operating, financing and concession holding

subsidiary companies. Three of these subsidiary companies, whose shares it owned wholly or

virtually wholly owned (Ebro Irrigation and Power Company Limited, Catalonian Land

Company Limited, and International Utilities Finance Corporation Limited) were incorporated

under Canadian law with their registered offices in Canada. Other subsidiary companies had

their registered offices in Spain. The National Trust Company Limited in Toronto acted as

trustee for several Sterling bonds secured by trust deed. The security consisted of a charge on

bonds and shares of Ebro and other subsidiaries and of a mortgage executed by Ebro in favor of

National Trust. The Sterling bonds were serviced out of transfers to Barcelona Traction made by

the subsidiary companies operating in Spain. The servicing of the bonds was suspended in 1936

owing to the Spanish Civil War. Authorization by the Spanish exchange control authorities for

14

Ibid at 362-3. 15

The Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain) (Preliminary Objections) (1964) 46 ILR 1.

13

the transfer of the foreign currency necessary for servicing the bonds was refused, and interest

payments on them was never resumed. On the 9th

of February, 1948, three Spanish holders who

recently acquired Barcelona Traction Sterling Bonds petitioned the Court of Reus, Taragona, for

a declaration; adjudging the company bankrupt on account of failure to pay interest on their

bond. A judgment declaring the company bankrupt was given on 12th

February of the same year.

A commissioner in bankruptcy and an interim receiver was appointed. Seizure of the assets of

Barcelona Traction, Ebro and Compania Barcelona de Electricidal (another subsidiary) was

ordered. Since the shares of Ebro and Barcelona had been deposited with the National Trust

Company in Toronto as security for the bonds issued, the possession of these shares was

„mandate and constructive civil possession‟-not physical possession. The commissioner in

bankruptcy dismissed the principal management personnel of the two companies and the interim

receiver appointed Spanish directors and declared the companies back to normal. These

measures were extended subsequently to other subsidiaries. The Barcelona Traction, National

Trust, the subsidiaries and their directors brought proceedings in Spain contesting the bankruptcy

judgment.

In the second phase of the case,16

the Belgian government claimed that Barcelona Traction‟s

share capital was held by Belgian individuals or corporate bodies although a large block of the

shares was transferred to United States nominees and trustees, but that Belgian nationals

continued to be the real owners. The Belgian government in 1962 filed with the International

Court of Justice an application against the Spanish government praying for reparation of damage

allegedly caused to Barcelona Traction. One of the objections raised by the Spanish government

was that the Belgian government lacked any jus standi to intervene or make a judicial claim on

behalf of its nationals in a Canadian company.

The Court observes that within the limit of international law:

“[A] State may exercise diplomatic protection by whatever means and to whatever extent

it thinks fit, for it is its own right that the State is asserting. Should the natural or legal

persons on whose behalf it is acting considers that their rights are not adequately

16

Barcelona Traction, Light and Power Company Limited (Second Phase) (1970) 46 ILR 178.

14

protected, they have no remedy in international law. All they can do is to resort to

municipal law, if means are available, with a view to furthering their cause or obtaining

redress”.17

The Court also noted that traditionally, rights to diplomatic protection of a corporation are

attributed to a state where it is incorporated and where it has its registered office. But that there

are other links that may be considered: “… when it has its seat (siege social) or management or

centre of control [is in a particular] territory, or when a majority or a substantial proportion of the

shares has been owned by nationals of a State concerned … [This is known as] a genuine

connection, … [but] no absolute test of the genuine connection has found general

acceptance…”.18

In the LaGrand Case (Germany v. United States),19

two brothers Walter and Karl LaGrand of

German nationality, were tried, convicted and sentenced to death for murder in 1982 in Arizona.

They were not informed by the authorities of their right to consular access under the 1963

Vienna Convention on Consular Relations. On the 24th

February, 1999, Karl LaGrand was

executed. On 2nd

of March, 1999, the day before the scheduled execution of Walter LaGrand,

Germany instituted proceedings before the International Court of Justice against the United

States of America for not complying with the provisions of S 36 of the Vienna Convention. The

application was accompanied by a request for provisional measures of protection, including a

stay of execution of Walter LaGrand pending the decision of the Court on the merits. The Court

ordered provisional measures on 3rd

March, 1999 as requested by Germany. The request to stay

the execution of Walter LaGrand was refused. Walter LaGrand was consequently executed on

the same day.

Some of the issues contended by Germany were:

1. The United States by not informing Karl and Walter LaGrand, without delay

following their arrest, of their rights under Article 36, paragraph 1(b), of the Vienna

Convention on Consular Relations, and by depriving Germany of the possibility of

17

Ibid at 218 Para 78. 18


LaGrand Case (Germany v. USA) 134 ILR 1 (2001) 59

15

rendering consular assistance, which ultimately resulted in the execution of the

LaGrands violated international legal obligations to Germany in its own right and in

its right of diplomatic protection of its national.

2. The United States, by applying the rules of its domestic law, in particular the doctrine

of procedural default, which barred the LaGrands from raising their claim under the

Vienna Convention on Consular Relations and by ultimately executing them, violated

its international legal obligation to Germany under Article 36, paragraph 2, of the

Vienna Convention to give full effect to the purposes for which the rights accorded

under Article 36 of the Vienna Convention are intended.

3. “The United States, by failing to take all measures at its disposal to ensure that Walter

LaGrand was not executed pending the final decision of the International Court of

Justice on the matter, violated its international legal obligation to comply with the

order on provisional measures issued by the court on 3 March 1999, and to refrain

from any action which might interfere with the subject matter of the dispute while

judicial proceeding are pending;”20

etc.

On the first issue, Germany contended that (1) the failure of the United States to inform the

LaGrands of their right to contact German authorities prevented Germany from exercising its

rights under Article 36, paragraph 1(a) and (c), of the Vienna Convention, which violates the

various rights conferred upon the sending state vis a vis its nationals in prison, custody or

detention as provided for by Article 36, paragraph 1(b), of the Convention. (2) The United States

also violated individual rights conferred on the LaGrands by virtue of Article 36, paragraph 1(a).

The Court held that the breach by the United States had the consequence of depriving Germany

of the exercise of the rights accorded to it under Article 36, paragraph 1(a) and (c), and

constituted a violation of the provisions of the Convention.

“It follows that when the sending State is unaware of the detention of its nationals due to

the failure of the receiving State to provide the requisite consular notification without

20

Ibid at 4.

16

delay, … the sending State has been prevented for all practical purposes from exercising

its rights under Article 36, paragraph 1”.21

On the issue of whether Article 36, paragraph 1(b), created individual rights, Germany alleges

that Article 36, paragraph 1(b), created individual rights and that such rights are to be regarded as

human rights. The Court notes that Article 36, paragraph 1(b), spells out obligations the

receiving state has towards both the detained person and the sending state, and concludes that

Article 36, paragraph 1, creates individual rights but the Court was silent on whether such rights

have assumed the character of a human right.22

On the second issue of procedural default, the Court makes a distinction between the rule itself

and its application in the present case; the rule itself does not violate Article 36 of the Vienna

Convention. The problem arises where the rule of procedural default does not allow the detained

individual (the LaGrands) to challenge a conviction and sentence.

“Germany had the right at the request of the LaGrands, to arrange for their legal

representation … [but b]y that time, however, because of the failure of the American

authorities to comply with their obligation under the Article 36, paragraph 1(b), the

procedural default rule prevented counsel for the LaGrands from effectively challenging

their convictions and sentences other than on United States constitutional grounds. As a

result, although United States Courts could and did examine the professional competence

of counsel assigned to the indigent LaGrands by reference to United States constitutional

standards, the procedural default rule prevented them from attaching any legal

significance to the fact, inter alia, that the violation of the right set forth in Article 36,

paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for

them and otherwise assisting in their defense as provided by the Convention. Under these

circumstances, the procedural default rule had the effect of preventing full effect … given

to the purposes for which the rights accorded under this Article are intended…”.23

21


Ibid at 33 Para 77-8. 23

Ibid at 36 Para 91.

17

On the third issue, the Court examined Article 41 (1) of the Statute of the Court and Article 31 of

the 1969 Vienna Convention on the Law of Treaties and decided that:

“…the power to indicate provisional measures entails that such measures should be

binding, inasmuch as the power in question is based on the necessity, when the

circumstances call for it, to safeguard, and avoid prejudice to, the rights of the parties as

determined by the final judgment of the Court”.24

In the Avena case,25

Mexico initiated proceedings at the International Court of Justice against the

United States of America on the 9th

of January 2003, alleging a breach of Article 36, paragraph

1(b) of the Vienna Convention on Consular Relation. The proceedings were in respect of over

fifty Mexican nationals who have been convicted and sentenced to capital punishment in

different states in America. Mexico also prayed for the Court to determine provisional measures,

asking the United States to take all necessary measures to ensure that no Mexican national will

be executed pending the final judgement of the Court. The International Court of Justice took the

same approach as in the LaGrand Case and found that the United States had breached its

obligation provided for under Article 36, paragraph 1(b) of The Vienna Convention against

Avena and other Mexican nationals and the Mexican State. Hence Avena and the others were

entitled to a review and reconsideration of their convictions and sentences.26

It is evident therefore that from the rulings of the International Court of Justice in the LaGrand

Case and the Avena Case that there is a progression or a rapid change from the traditional

position laid down in the Mavrommatis Case to a new position in international law which

recognizes individual rights and not just state rights. But it is not clear if this right has

transformed into a human right.

24


Case Concerning Avena and Other Mexican National (Mexico v. USA) (2004) 134 ILR 95. 26

Ibid at 136.

19

CHAPTER TWO - NATIONALITY ISSUES

2.1 Introduction

“Nationality is the principal link between individuals and international law”,27

“it is essentially a

term of international law and denotes that there is a legal connection between the individual and

the state for external purposes”.28

This function of nationality becomes apparent with regard to

individuals abroad. A state therefore has a right of protection over its nationals abroad, every

state holds this right and occasionally exercises such right against other states in case of an

injury to one of its national.29

As stated in Nottebohm’s case, “nationality is a legal bond having

as its basis a social fact of attachment, a genuine connection of existence, interest and sentiment,

together with the existence of reciprocal rights and duties. It may be said to constitute the

juridical expression of the fact that the individual upon whom it is conferred, either directly by

the law or as a result of an act of the authorities, is in fact more closely connected with the

population of the State conferring nationality than with that of any other State”.30

This chapter

seeks to look at these nationality issues and to determine the rules guiding them: acquisition of

nationality, double or multiple nationality, continuity of nationality, loss of nationality,

nationality of corporation and its shareholders, the fate of stateless persons and refugees and

finally the right to diplomatic protection.

2.2 Key Issues Relating to Nationality

2.2.1 Acquisition of Nationality

Although it is the right of a state to determine the rules guiding the acquisition of its nationality,

it is international law which determines whether such acquisition is acceptable: “International

law may refuse to recognize nationality for the purposes of diplomatic protection.”31

In the

Nottebohm’s Case, the Court stated that:

27

Oppenheim International Law Jennings and Watts (eds.) 1992 at 857. 28

Dugard International Law A South African Perspective (2011) 282. 29

Oppenheim International Law Jennings and Watts (eds.) 1992 at 857. 30

Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349 at 360. 31

Dugard International Law A South African Perspective (2011) 284.

20

“…a State cannot claim that the rules it has … laid down are entitled to recognition by

another State unless it has acted in conformity with this general aim of making the legal

bond of nationality accord with the individual‟s genuine connection with the State which

assumes the defence of its citizens by means of protection as against other States”. 32

Nationality is governed by the municipal laws of states.33

Hence different states in their national

law stipulate how and when a person becomes a national. It is for each state to determine under

its own law who are its nationals and such a law shall be recognized by other states provided that

it is consistent with international conventions, international customs and the principles of law

generally recognized with regard to nationality.34

“In practice, the domestic laws of States tend to

base nationality on birth in the territory of the State (Jus soli), on descent from nationals of the

State (Jus Sanquinis), or both. Nationality may also be acquired after birth in many states

through naturalization”.35

Common law countries like the United Kingdom adopted the jus soli

rule. According to the British Nationality Act, 1981, a person born within the United Kingdom

and its Colonies… shall be a citizen of the United Kingdom and Colonies.36

In South Africa

nationality by birth is not automatic. S 2 of the South African Citizenship Act provides for

citizenship by birth but at least one of the parents must be a South African.37

There are

exceptions to the jus soli rule in the United Kingdom to the effect that children of diplomats who

are born within the United Kingdom do not automatically acquire United Kingdom‟s

nationality.38

Nationality through naturalization usually requires that the alien must have resided in that

country for a number of years before nationality can be acquired. Conditions required for this

vary from country to country.39

32

Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349 at 359 – 360. 33

Shaw International Law (2008) 660. 34

Article 1 of the 1930 Hague Convention on the Conflict of Nationality laws. 35

Currie, Forces, Osterveld International Law: Doctrine, Practice and Theory (2007) 453.

36 S1 British Nationality Act, 1981.

37 South African Citizenship Act 88 of 1995 as amended.

38 Article 12 of the Convention on Certain Questions Relating to the Conflict of Nationality Law, 1930.

39 Shaw International Law (2008) 662.

21

Nationality may also be acquired by marriage. Wives of nationals can acquire the nationality of

their husbands but the position varies from country to country. In some countries, acquisition

may be automatic or based on conditions which must be fulfilled. While in some countries,

marriage has no effect on the nationality of the woman.40

According to the Convention on the

Nationality of Married Women, 1957, marriage does not automatically affect the nationality of

the woman. “Each Contracting State agrees that neither the celebration nor the dissolution of a

marriage between one of its nationals and an alien, nor the change of nationality by the husband

during marriage, shall automatically affect the nationality of the wife”.41

Diplomatic protection can only be extended to the nationals of the state concerned. It cannot be

extended to an alien or a foreigner. In the European Union, diplomatic protection can be

extended to a person of any other member state where his or her state of origin does not have a

diplomatic representation in a third state.42

Article 4 of the International Law Commission‟s Draft Article on Diplomatic Protection provides

that:

“For the purposes of the diplomatic protection of a natural person, a State of nationality

means a State whose nationality that person has acquired, in accordance with the law of

that State, by birth, descent, naturalization, succession of States, or in any other manner

not inconsistent with international law”.

This provision does not require a state to prove that there is an effective or genuine link between

the state and the national it intends to protect, as long as such conferment of nationality is not

inconsistent with international law. The International Law Commission was “mindful of the fact

that if the genuine link requirement proposed by the Nottebohm‟s case was strictly applied, it

would exclude millions of persons from the benefit of diplomatic protection as in today‟s world

of economic globalization and migration there are millions of persons who have moved away

40

Ibid. 41

Article 1 of the Convention on the Nationality of Married Women, 1957. 42

Article 20 of the Treaty Establishing the European Community, 2002.

22

from their State of nationality and made their lives in States whose nationality they never acquire

or have acquired nationality by birth or descent from States with which they have tenuous

connection”.43

2.2.2 Double or Multiple Nationalities.

Due to the problem of conflict of laws and lack of uniformity in relation to nationality, people

have ended up with more than one nationality. For instance, where a child is born in a country

that recognizes jus soli and his parents are from another state which recognizes jus sanquinis,

that child will ultimately have a dual nationality through birth and by virtue of being a

descendant of his parents. Another instance is where a woman marries someone who is of a

different nationality. She may keep or retain her nationality according to the laws of her country

and is also able to obtain the nationality of her husband. Dual nationality can also arise where a

person naturalizes in one state, but does not lose the nationality of his/her home state.44

South

Africa is against the recognition of dual or multiple nationalities in situations where: a) The

citizen enters or departs from the country using another country‟s passport. b) Where the citizen

intends to use another country‟s passport to gain an advantage or avoid a responsibility or duty.45

Article 5 of the 1930 Hague Convention on the Conflict of Nationality Laws provides that in

relation to a third state, a person with dual nationality shall be treated as if he had one nationality

and such third state shall recognize :-

(a) The nationality of the country in which he is habitually and principally resident;

(b) The nationality of the state with which he appears to be in fact most closely

connected.

The provision of this Convention gives rise to the effective nationality principle or effective link

principle.46

The International Law Commission‟s Draft Article on Diplomatic Protection

provides that where a person has dual nationality, the two states of which that person is a

43

Commentary to Article 4 of the International Law Commission’s Draft Articles, 2006. 44

O’Connell International Law (1965) 746; Oppenheim International Law Jennings and Watts (eds.) 1992 at 883; Green International Law (1987) 97. 45

S 26B, South African Citizenship Act 17 of 2004 (As amended). 46

Nottebohm Case ( Liechtenstein v. Guatemala) (1955) 22 ILR 349 at 360.

23

national of can actually jointly exercise a right over the national. Article 6 of the Draft article

provides for multiple nationality and claims against a third state;

1. Any state of which a dual or multiple national is a national may exercise diplomatic

protection in respect of that national against a state of which that person is not a national.

2. Two or more states of nationality may jointly exercise diplomatic protection in respect of

a dual or multiple nationalities.

Article 4 of the 1930 Hague Convention on the Conflict of Nationality Laws also provides that a

state of nationality may not exercise diplomatic protection in respect of a person against a state

of which that person is also a national. But article 7 of the International Law Commission‟s Draft

Articles on Diplomatic Protection provides for an exception where the former state is

predominant, both at the date of injury and at the date of the official presentation of the claim.47

2.2.3 Continuity of Nationality

Article 5 of the International Law Commission‟s Draft Articles on Diplomatic Protection

provides that for a state to be able to exercise diplomatic protection in respect of a person, that

person must have been a national continuously from the date of the injury to the date of the

official presentation of the claim. Continuity is presumed if the nationality existed at both these

dates. This provision has been subjected to a lot of criticism on the ground that it will lead to

great hardship in a situation where the change of nationality is not warranted by the diplomatic

protection claim.

Article 5(2) provides for exceptions to this rule. It states that a state may exercise diplomatic

protection in respect of a person who is its national at the date of the official presentation of the

claim but was not a national at the date of the injury, provided that the person had the nationality

of a predecessor state or lost his or her previous nationality and acquired, for reasons unrelated to

the bringing of the claim, the nationality of the former state in a manner not inconsistent with

international law. The loss of the nationality in this case could be involuntary (succession of

states, marriage or adoption) or voluntary. In which case, change of nationality must not be

warranted by the diplomatic protection claim. While Article 5(4) provides that a state will not be

47

Merge Claim (1955) 22 ILR 564.

24

entitled to exercise diplomatic protection in respect of a person who acquires the nationality of

the state against which the claim is brought after the date of the official presentation of the claim.

The respondent state will then be required to compensate its own national.

2.2.4 Loss of Nationality

There are circumstances where a state may withdraw the nationality of an individual or the

individual on his/her own volition may decide to reject the nationality of a particular state and

assume the nationality of another state. States are required to produce circumstances in which

nationality may be withdrawn automatically like through acquisition of a new nationality,48

by

naturalization or where a person who has an option to take up nationality at a certain age refuses

to register with the consul.49

A person may also lose his or her nationality through his own action

through renunciation or by declaration of lineage upon coming of age.50

A state may also deprive

a person of his or her nationality as “penalty for commission of a crime or refusal to perform

military service or a policy measure designed to detach certain classes of person‟s, example

residents abroad, religious or racial minorities within the country.51

2.2.5 Nationality of a Corporation and its Shareholders

As discussed above, nationality is guided by the municipal law of states. The same also applies

to nationality of corporations.52

For instance the United Kingdom recognizes the nationality of

the state of incorporation (siege social), Italian law recognizes the principle place of business of

the corporation (centre d‟exploitation), or the central control (siege reel) which is also practiced

by other states. Due to this, corporations may also have double or multiple nationalities.53

The

application of municipal laws becomes a problem where there is a dispute in a company with the

nationality of a particular country but its major shareholders are of another nationality with no

binding treaty as to how disputes will be resolved.54

The Draft Articles on Diplomatic Protection

48

Article 6(1)(a) of South African Citizenship Act 88 of 1995 amended in 2004. 49

Green International Law (1987) 96. 50

ibid 51

O’connell International Law (1965) 742. 52

Barcelona Traction Case (2nd

phase) 46 ILR 178 (1970) 211.

53 Oppenheim International Law Jennings and Watts (eds.) 1992 at 859-864, Green International Law (1987) 98-

102. 54

Barcelona Traction Case (2nd

phase) 46 ILR 178 (1970) 211.

25

tries to alleviate this problem. Article 9 provides that the state of nationality means the state

under whose law the corporation was incorporated. The article also provides for situations where

the corporation was incorporated in one state but has its principal place of business in another

state. For such a state to claim nationality of the corporation, there must be another significant

link other than the place of incorporation. Therefore when a certain significant connection exists

with another state other than the state of incorporation, that other state becomes the state of

nationality.

“… Policy and fairness dictate such a solution. It is wrong to place the sole and exclusive

right to exercise diplomatic protection in a State with which the corporation has the most

tenuous connection as in practice such a State will seldom be prepared to protect such a

corporation”.55

Such significant links as mentioned above must include cumulatively all the following:

a. The corporation must be controlled by nationals of another state,

b. It must have no substantial business activities in the state of incorporation, and

c. Both the seat of management and the financial control of the corporation must be located

in another state.56

The International Law Commission‟s Draft Article on Diplomatic Protection also made

provisions for situation where the state of nationality of a corporation may be the nationality of

the shareholders. These situations are:

1. Where the corporation has gone into liquidation.57

2. Where the injury was caused by the state of incorporation and the only means of getting

protection is from the shareholders own state.58

55

Commentary to Article 9 of the International Law Commission’s Draft Article on Diplomatic Protection, 2006. 56

Ibid. 57

The International Law Commission’s Draft Article on Diplomatic Protection (2006) Article 11 (a). 58

Ibid at Article 11 (b).

26

3. Where the injury is directly to the shareholders which is different from the right of the

corporation. For instance where there is a failure to pay dividends, denial of right to

attend and vote in general meeting, etc.59

2.2.6 Stateless Persons and Refugees

A person who does not have a nationality is said to be stateless. This could be either intentionally

or unintentionally. Since there is no nationality which is the link between the individual and the

state, the person may be left unprotected under international law.60

To avoid being stateless,

efforts have been made internationally,61

the recent one being the 2006 International Law

Commission‟s Draft Articles on Diplomatic Protection. Article 8(1) of the International Law

Commission‟s Draft Article on Diplomatic Protection provides that a state may exercise

diplomatic protection in respect of a stateless person who at the date of the injury and at the date

of the official presentation of the claim is lawfully and habitually resident in that State. Hence

“the criterion of personal residence is adopted for determining which state has primary

jurisdictional competence with respect to stateless persons and for the process of selecting the

law governing personal status”.62

Refugee status is a form of statelessness because the stateless person is in the same condition as a

refugee, “in that the state whose nationality they possess is unlikely to afford them any protection

or otherwise provide them with the benefits which normally flow from the possession of a

nationality”.63

Under Article 8(2), a state can also exercise diplomatic protection for a

recognized refugee if at the date of the injury and at the date of the official presentation of the

claim, he is a resident of that state. But the state of residence of the refugee cannot claim against

the refugee‟s home state for any injury suffered.64

59

Ibid at Article 12. 60

Oppenheim International Law Jennings and Watts (eds.) 1992 at 886.

61 Like the 1930 Hague Convention on the Conflict of Nationality Laws, The 1948 Universal Declaration of Human

Rights etc. 62

O’Connell International Law (1965) 748.

63 Oppenheim International Law Jennings and Watts (eds.) 1992 at 891.

64 Article 8(3) of the International Law Commission’s Draft Article on Diplomatic Protection, 2006.

27

Though the provisions of the draft article provide for the above mentioned rights for the

shareholders, but this is but a draft article which is still not binding.

28

2.3 Right to Diplomatic Protection

Can a national who runs into problems in a foreign country demand to be protected by his/her

national state? Can that national insist on being protected regardless, and what is the level of

dedication and effort the state have to exhibit? To answer this, one must consider the provisions

of the International Law Commission‟s Draft Article on Diplomatic Protection and different

cases which have been decided or adjudicated upon by the courts.

2.3.1 The International Law Commission and Diplomatic Protection

Diplomatic protection was first included in the International Law Commission‟s agenda in 1995.

In the Commission‟s view, it believed that the work on diplomatic protection would not only

compliment the earlier work of the Commission on state responsibility but will also be beneficial

to all the Member States. The issues the Commission would consider included; “the content and

scope of the rule of exhaustion of local remedies; the rule of nationality of claims as applied to

both natural and legal persons, including its relation to so-called functional protection; and

problems of stateless persons and dual nationals. In 1997, the Commission setup a working

group chaired by a Special Reporteur, Mr. Mohamed Bennouna, to look into the scope and

content of the topic. Upon his resignation in 1999, Christopher John Dugard was appointed in his

place. In 2000, Christopher John Dugard submitted his first report to the Commission. Some of

the proposed articles were accepted and some rejected. Amongst those rejected proposed article

was article 4 which is on the duty to exercise diplomatic protection in cases of injury arising

from a grave breach of a jus cogens norm. Christopher John Dugard continued to submit

proposal in subsequent sessions to the Commission for approval. The draft article is now in its

final stages.65

Dugard in the 2011 edition of his book, International Law a South African Perspective, believes

that even where there seem to be no duty on the state to provide diplomatic protection in

international law, the state is obligated under municipal law.

“There is growing support for the proposition that there is some duty on states to afford

diplomatic protection to nationals subjected to serious human rights violations in foreign

65

International Law Commission; Reservations to Treaties. Accessed from http://untreaty.un.org/ilc/summaries/1_8.htm on 11th of Sept., 2012 at 12:30

http://untreaty.un.org/ilc/summaries/1_8.htm

29

states, albeit under domestic administrative and constitutional rules rather than

international law”.66

Shaw in his book, International Law, seems to agree with this proposition but still emphasizes

the relevance of a state, where he stated that:

“… Although international law is now moving to a stage whereby individuals may

acquire rights free from the interposition of the state, it is only through the medium of the

state that the individual may obtain the full range of benefits available under international

law, and nationality is the key”.67

2.3.2 Rights in Municipal Law

In Abbassi and Another v. Secretary of States for Foreign and Commonwealth Affairs,68

the

claimant, a British citizen was detained in Guantanamo Bay Naval Base by the United States of

America. Following the terrorist attacks in the United State on 11th

of September 2001, the

United States engaged in fighting terrorism both in Afghanistan and other parts of the world. The

claimant was captured in Afghanistan in the course of the conflict and transferred to Guantanamo

Bay along with other detainees, where they were interrogated by United States officials. The

detainees were not considered as prisoners of war, but rather as unlawful combatants. For this

reason, the United States did not consider them to have right of access to a lawyer or to challenge

the legality of their detention in court. The United State Courts dismissed a number of actions

brought before it by or on behalf of those detained. The Inter- American Commission on Human

Rights then called on the United States for the determination of the legal status of the detainees

by a competent tribunal.69

The United States contested the jurisdiction of the Inter- American

Commission on Human Rights and measures for which it called it.

66



(2002) 126 ILR 685. 69

Ibid at 696.

30

Abassi and other British detainees then instituted action against the Secretary of State for Foreign

and Common Wealth Affairs and the Home Department for lack of protection against

interrogation by the United States Officials.

The Court emphasized that there is no support for the proposition that the United Kingdom

authority had a duty to protect its citizens, and also making reference to the rejection of Professor

Dugard‟s report to the International Law Commission.70

The Court noted that the conventional view is that a “state intervenes by diplomatic action in aid

of a subject who has been treated by another state in a manner which infringes international law,

the injury that has been done is to the state and the right is of the state… But there is a recent

development in international law which recognizes that the right infringed upon is that of the

subject and intervention of the state is in support of the right of that subject”.71

In Kaunda and Others v. President of the Republic of South Africa and others72

, the applicants

were 69 South African citizens arrested and detained in Zimbabwe on a variety of charges

ranging from conspiracy to possession of dangerous weapons to making false declarations. The

applicants were accused of being mercenaries and of plotting a coup to overthrow the president

of Equatorial Guinea. The applicants claimed they were security guards employed by a company

in Democratic Republic of Congo involved in mining operations. They claim they were required

to arm themselves with weapons suitable to resist rebel army attacks. They were en-route to the

Democratic Republic of Congo to fulfill their contract with the mining company when they were

arrested in Zimbabwe. The applicants then brought an application before the High Court

claiming that they have been subjected to in-human and degrading treatment in a Zimbabwean

prison and feared that they will not get a fair trial and if convicted, that they stand a risk of being

sentenced to death or life imprisonment if extradited to Equitorial Guinea.

The applicants in their application in the High Court sought for an order to compel the

Government of South Africa to intervene on their behalf and to take appropriate steps to ensure

70

Ibid at 714. 71

Ibid at 704 (Para 40). 72

2005 (4) SA 235 (CC).

31

that their rights to dignity, freedom and security of the person and fair conditions of detention

and trial are at all times respected and protected both in Zimbabwe and Equatorial Guinea. The

High Court dismissed the application. An urgent appeal to bring the matter before the

Constitutional Court was then lodged, asserting that they had rights under the constitution

entitling them to make such demands, and claiming that the government had failed to comply

with their demands and that in failing to do so, it had breached their constitutional rights. Hence

they prayed for a mandamus which would order the government to take actions at a diplomatic

level to ensure that their rights are protected and respected by both the Government of Zimbabwe

and Equatorial Guinea.

The Court held that the state has a duty to protect its nationals abroad, those nationals are entitled

to request and be protected under international law against wrongful acts of a foreign state, since

they cannot invoke international law themselves. The Court added that even though such rights

exist, “[d]iplomatic protection remains the prerogative of the State to be exercised at its

discretion”.73

The Court continued that:

“If … citizens have a right to request government to provide them with diplomatic

protection, then government must have a corresponding obligation to consider the request

and deal with it consistently with the constitution…”.74

The Court asserts that in some extreme case, the government may be obliged to take its own

initiative to protect a national.

“There may even be a duty on the government in extreme cases to provide assistance to

its nationals against egregious breaches of international human rights which come to its

knowledge. The victims of such breaches may not be in a position to ask for assistance,

and in such circumstance, on becoming aware of the breaches, the government may well

be obliged to take an initiative itself”.75

73



Ibid at 260 (Para 70).

32

The Court went on to suggest that the best way to handle the situation of diplomatic protection in

the interest of the national is by negotiations with the state, and not for a Court Order, stating

that:

“The best way to secure relief for the national in whose interest the action is taken may

be to engage in delicate and sensitive negotiations in which diplomats are better placed to

make decisions than judges, and which could be harmed by court proceedings and the

attendant publicity”.76

But where the refusal by the government to treat such request for diplomatic protection is

unreasonable, then the Court would have no choice but to intervene.

“If government refuses to consider a legitimate request, or deals with it in bad faith or

irrationally, a court could require government to deal with the matter properly.

Rationality and bad faith are illustrations of grounds on which a court may be persuaded

to review a decision”.77

Ngcobo J. in concurring with the decision of the Court added that:

“[T]he government has discretion in deciding whether to grant diplomatic protection and

if so, in what manner to grant such protection in each case. It must be left to the

government to assess the foreign policy considerations in making its decision. However,

that does not mean that the whole process is immune from judicial scrutiny. This must

depend on the scope of the duty. … [T]he duty of the government [therefore] entails a

duty to properly consider the request for diplomatic protection. The government must

carefully apply its mind to the request and respond rationally to it. This would require,

amongst other things, the government to follow a fair procedure in processing the request

and it may be required to furnish reasons for its decisions. The request for diplomatic

protection cannot be arbitrarily refused”.78

76



Ibid at 290-291 (Para 191-2).

33

Judge O‟ Regan dissents in part with the decision of the court by agreeing that the state is

entitled to take diplomatic steps to protect its nationals against the violation of internationally

recognized human rights standards by stating that: “[Government is obligated] to provide

diplomatic protection to its citizens to prevent or repair egregious breaches of international

human right norms. … [Hence the citizen is] entitled to diplomatic protection”.79

But dissents that this obligation is not derived from the Constitution. She is of the view that this

right can also be derived from S 3 of the 1996 South African Constitution:

“In my view, when s 3 speaks of the „privileges and benefits‟ of citizenship it includes

within it the right of the State to make diplomatic representations on their behalf to

protect them against a breach of international law. It is true that historically international

law has taken the view that in making such diplomatic representation, the State acts in

defense of its own interests, not in the interests of its nationals, who are not „subjects‟ of

international law. However, it is increasingly being recognized that this is a fiction in the

sense that the primary beneficiaries of diplomatic representations made by the State are

those nationals in respect of whom the State makes representations. … Given that it is

widely accepted that the right to diplomatic protection does serve the interest of

individuals, it seems appropriate to consider the provision of diplomatic protection by the

State to fall within the „privileges and benefits‟ of citizenship as contemplated by s 3”. 80

In Von Abo v. Government of Republic of South Africa81

, Mr.Von Abo, a South African citizen

and businessman, held various properties and farming interests in Zimbabwe. The government of

Zimbabwe devised a legislative scheme to confiscate land owned by white farmers. This led to

wide-spread expropriation of land and farming businesses without compensation. Many white-

owned farms were taken over by the Zimbabwean government or invaded by people claiming to

be repossessing such lands. Owners of land and farms were forcibly evicted from the land

without due process of the law. Mr. Von Abo‟s farm was one of those repossessed. He then

79

Ibid at 305 (Para 238). 80

Ibid at 303-4 (Para 236). 81

2009 (2) SA 526 (TPD).

34

brought court proceedings against the Zimbabwean government and after having exhausted all

local remedies available to him in Zimbabwe without success, he approached the government of

South Africa for diplomatic protection. The government of South Africa was not forthcoming

with any positive response. After five years and several requests to the South African

government for diplomatic intervention, Mr. Von Abo approached the High Court seeking an

order declaring that the failure of the South African Government to consider and decide his

application for diplomatic protection in respect of the violation of his rights by the Government

of Zimbabwe was inconsistent with the constitution and invalid. The High Court found that the

long drawn-out response of the Government of South Africa amounted to merely “stringing the

appellant along”, and that the respondent never had any serious intention to affording him proper

protection. The Court held that the applicant had a right to diplomatic protection and that the

respondent failed to take the necessary steps to afford the applicant such protection. The court

granted the order for a declaratory and mandatory relief sought by Mr. Von Abo. The respondent

were then given sixty (60) days to take all necessary steps to have the applicant‟s violation of his

right by the Zimbabwean government remedied. The Court through Prinsloo J stated that the

respondent had done nothing and failed in its constitutional duties, stating that:

“…over all these years the respondents have done absolutely nothing to assist the

applicant, despite diligent and continued requests for diplomatic protection… [by the

applicant]. No explanation whatsoever has been forthcoming for this tardy and lackluster

bahaviour. …The feeble excuse offered from time to time in the opposing papers that the

South Africans are dependent on the whims and time frames of the Zimbabweans is

nonsense. This is a powerful and a proud country and there is no reason why it cannot

employ any of the effective internationally recognized diplomatic measures…to bring

about proper protection for its national. For this abject failure and dereliction of duty

there is no explanation whatsoever to be found in the papers filed on behalf of the

respondents”.82

82

Ibid at 550 (Para 91-92).

35

The Court added that: “The applicant…had a right to apply for diplomatic protection, and the

respondents at a minimum, were under a constitutional duty at the very least to properly (that is

rationally) apply their mind to the request for diplomatic protection”.83

Von Abo subsequently applied to the Constitutional Court84

for a confirmation of the High Court

judgment. The Constitutional Court held that the applicant, Von Abo “has approached the Court

erroneously”.85

Mr. Von Abo then returned to the High Court to determine whether the

government has complied with the Court‟s ruling.86

Prinsloo J. concluded “that the respondents

exhibited no interest whatsoever in attempting to comply with the orders of this Court”.87

He

further declared that:

“The internationally recognized forms of diplomatic intervention … have been designed

to force offending states to toe the line. There is no room for an argument that diplomatic

intervention becomes toothless, simply because the offending state exhibits no intention

ever to co-operate. It is precisely under those circumstances when the recognized

interventions…come into play: the strength of the intervention, as illustrated, depends on

the level of resistance. South Africa is the power house of the region. It is common

knowledge that Zimbabwe is dependent on South Africa for almost every conceivable

form of aid and assistance. I see no reason why the respondent cannot apply the necessary

pressure, under these circumstances to assist their valuable and long-suffering citizens,

such as the applicant. In breach of their constitutional duties, the respondents have

refrained from affording such assistance for almost a decade. To date, they have brought

about no meaningful assistance for the applicant whatsoever. The state of affairs may

well continue into the future. The time has arrived for this court to afford the applicant

appropriate and effective relief”.88

83

Ibid at 561 (Para 141). 84

Von Abo v. President of Republic of South Africa 2009 (5) SA 345 (CC). 85


Von Abo v. Government of the Republic of South Africa 2010 (3) SA 269 (GNP). 87


Ibid at 292 (Para 67 B-E).

36

The Court then ordered that the respondents were liable to pay damages for the violations Von

Abo had suffered as a result of the conduct of the Zimbabwean government.89

The South African Government then successfully appealed this judgment in the Supreme Court

of Appeal.90

The Court through Snyders JA held that the compliance with the orders of the High

Court would be impossible, that the orders set an impossible task for the government.91

Snyders

JA went on to state that the order to pay damages to Von Abo by the Government of South

Africa for the violations of his rights by the Zimbabwean Government lacked legal foundation.

“The factual situation does not give rise to vicarious liability and such liability does not

arise in a constitutional law context. It is therefore a completely foreign concept that one

state would attract liability in terms of its municipal law (because that is the only law that

the respondent could enforce against the appellants) viz a viz its own national for the

wrongs of another state, committed by that state in another country viz a viz the same

individual. The only breach that would legally have occurred in the present case is that

the appellants failed to comply with their duty”.92

The Court then held that the High Court had erred in its judgment by ordering the government to

pay damages for the violation of Von Abo‟s right by the Zimbabwean government. Hence the

order was set aside.

According to the decisions of the various Courts in the cases highlighted above, the rights of the

national ought to be protected under municipal law. The individual has a right to request for

protection from his government and the government has a duty to respond to such request though

with its discretion. And where such government fails in its duty to respond to such request, or

refuses the request irrationally, the Court can intervene on behalf of such individual.

89


Government of Republic of South Africa and others v. Von Abo 2011 (5) SA 262 (SCA). 91


Ibid at 276 (Para 31).

37

CHAPTER THREE – THE LOCAL REMEDY RULE

3.1 Introduction

When the right of a national of another state is infringed upon by a delinquent state, that national

must first go through the judicial system of the delinquent state to remedy such wrong. It is only

when he/she cannot get redress in that delinquent state that the national can now go through his

home state to intervene for him/her in international law. This is known as the exhaustion of local

remedy rule. Hence a state cannot come into the picture by way of diplomatic protection unless

all the available avenues for remedying the situation are met but proves futile. This chapter will

examine the rule and determine whether there are exceptions to it.

3.2 The Scope of Local Remedy Rule

“The basic rule of international law providing that states have no right to encroach upon the

preserve of other state‟s internal affairs is a consequence of the equality and sovereignty of

states”.93

Hence states are allowed to solve their own internal problems using their own

constitutional procedures before international processes can be employed should a national of

another state not be satisfied with the processes.94

“The purpose of the rule is both to enable the

state to have an opportunity to redress the wrong that has occurred within its own legal order and

to reduce the number of international claims that might be brought”.95

This rule was recognized

by the International Court of Justice in the Interhandel Case as “a well established rule of

customary international law”.96

Also in the Elettronica Sicula (ELSI) Case, the International

Court of Justice stated that it is “an important principle of customary international law”.97

Article 14(1) of the International Law Commission‟s Draft Articles on Diplomatic Protection,

2006 provides that: “A state may not present an international claim in respect of an injury to a

93


Ibid at 273. 95

Ibid at 819. 96

Interhandel Case (Switzerland v. United States of America) Preliminary Objections (1959) 27 ILR 475 at 490. 97

ELSI Case (United States v. Italy) 84 ILR 312 (1989) at 348 Para 50.

38

national or other person referred to in Article 898

before the injured person has, subject to Article

1599

, exhausted all local remedies. Article 14(2) defines „local remedies as the legal remedies

which are available to an injured person before judicial or administrative courts or bodies,

whether ordinary or special, of the state alleged to be responsible for causing the injury. This rule

is applicable to both natural and legal persons. A foreign company even when financed by public

capital is still required to exhaust local remedies. Stateless persons and refugees as provided for

in Article 8 of the International Law Commission‟s Draft Article on Diplomatic Protection are

also required to exhaust local remedies.

“The rule requires that „local remedies‟ shall have been exhausted before an international action

can be brought. These „local remedies‟ include not only reference to the courts and tribunals, but

also the use of procedural facilities which municipal law makes available to litigants before such

courts and tribunals. It is the whole system of legal protection, as provided by municipal law,

which must have been put to the test before a State, as the protector of its national, can prosecute

the claim on the international plane”.100

In order to satisfactorily lay the foundation for an

international claim on the ground that local remedies have been exhausted, the foreign litigant

must raise the basic arguments he intends to raise in international proceedings in the municipal

proceedings.101

In the ELSI Case, the International Court of Justice stated that: “for an

international claim to be admissible, it is sufficient if the essence of the claim has been brought

before the competent tribunals and pursued as far as permitted by local law and procedures and

without success”.102

This test is preferable to the stricter test enunciated in the Finnish Ships

98

Article 8 provides that 1.” A state may exercise diplomatic protection in respect of a stateless person who, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that state. 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 date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that state”. 99

Draft Article 15 provides that local remedies rule do not need to be exhausted where: a. “there are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress; b. there is undue delay in the remedial process which is attributable to the State alleged to be responsible; c. there was no relevant connection between the injured person and the state alleged to be responsible at the date of injury; d. the injured person is manifestly precluded from pursuing local remedies; or e. the State alleged to be responsible has waived the requirement that local remedies be exhausted”. 100

Currie, Forces and Osterveled International law: Doctrine, Practice and Theory (2007) 797. 101


ELSI Case (United States v. Italy) 84 ILR 312 at 352 (Para 59).

39

Arbitration Case where it was stated that; all the contentions of fact and propositions of law

which are brought forward by the claimant government must have been investigated and

adjudicated upon by the municipal courts.103

The Claimant State must therefore produce the evidence available to it to support the essence of

its claim in the process of exhausting local remedies.104

The international remedy afforded by

diplomatic protection cannot be used to overcome faulty preparation or presentation of the claim

at the municipal level.105

This cannot be stretched too far so that the Defendant State would not

always claim that the local remedies available were not exhausted, where there is a neglect of

some procedure even when such procedure will not positively affect the case.106

Article 14(3) provides that the exhaustion of local remedies rule applies only to cases in which

the Claimant State has been injured „indirectly‟ that is, through its national. It does not apply to

situations where the Claimant State is directly injured by the wrongful act of another State, this is

because for direct injury the State has a distinct reason of its own for bringing an international

claim.107

In practice it is difficult to decide whether the claim is „direct‟ or „indirect‟. In some

situations, the injury could be „mixed‟, in the sense that it contains elements of both injury to the

State and injury to the nationals of the State. Many disputes before the International Court of

Justice have presented the phenomenon of the mixed claim.108

For instance in the Hostage

Case,109

where there was a direct violation on the part of the Islamic Republic of Iran of the duty

it owed to the United States of America to protect its diplomats and consuls, but at the same time

there was injury to the person of the nationals.

The „but for test‟ like the provisions of Article 14(3) of the Draft Article is used also when the

claim comprising elements of both direct and indirect injuries are present. If the claim would

103

Finish Vessels in Great Britain during the War (Finland v. Great Britain) (1934) 7 ILR 231 at 233. 104

Ambatielos Claim (Greece v. United Kingdom) (1956) 24 ILR 291 at 292 (Para 33). 105

O’Connell International Law (1965) 1059. 106

Ibid. 107

Amerasinghe State Responsibility for Injuries to Aliens (1967) 145-168. 108


Case concerning United States Diplomatic and Consular staff in Tehran (United States v. Iran) (1979) 61 ILR 530.

40

have been brought anyway regardless of the claim on behalf of the injured national, then the

claim is a direct one and local remedies need not be exhausted. To determine whether a claim is

direct or indirect, other principal factors are considered in making these assessments. These

factors include:110

a. The subject of the dispute,

b. The nature of the claim, and

c. The remedy claimed.

Thus where the subject of the dispute is a Diplomatic Official,111

or State Property112

the claim

will normally be direct, and where the state seeks monetary relief on behalf of its national as a

private individual the claim will be indirect.113

In a „mixed claim‟, it is the duty of the courts to examine different elements of the claim and to

decide whether the direct or the indirect element is preponderant.114

In the ELSI Case a Chamber

of the International Court of Justice rejected the argument of the United States that part of its

claim was premised on the violation of a treaty and that it was therefore unnecessary to exhaust

local remedies, in holding that: “the Chamber has no doubt that the matter which colors and

pervades the United States claim as a whole, is the alleged damage to Raytheon and Machlett, a

United States corporation”.115

Article 14(3) also includes exhaustion of local remedies in respect of a declaratory judgment

brought preponderantly on the basis of an injury to a national.116

In the Interhandel’s Case the

state was required to exhaust local remedies where they have sought a declaratory judgment

110


Case concerning United States Diplomatic and Consular staff in Tehran (United States v. Iran) (1979) 61 ILR 530. Where the Consular and Staff of the Embassy were held captive. 112

The Corfu Channel’ Case (United Kingdom v. Albania) Merits (1949) 16 ILR 155. British warships were damaged by sea mines. 113


Ibid. 115

ELSI Case (United States v. Italy) 84 ILR 312 at 349 (Para 52). 116

Ibid.

41

relating to the interpretation and application of a treaty alleged to have been violated by the

respondent state in the course of, or incidental to its unlawful treatment of a national.117

As discussed above, Draft Article 15 makes provisions for the exceptions to the general rule of

exhaustion of local remedies. For an individual to have a strong case before the International

Court of Justice, the individual should exercise some patience when accessing the available local

avenues for remedy in the delinquent state to avoid the case being thrown out for non exhaustion.

Therefore once these exceptions listed in Draft Article 15 do not apply to the particular case, all

the available remedies must be exhausted.

117

The Interhandel case (Switzerland v. United States of America) Preliminary Objections 27 ILR 475 (1959) 492.

42

CHAPER FOUR – TREATMENT OF ALIEN

4.1 Introduction

As the number of nationals abroad increase, so did business and trading activities of those

foreigners in the countries where they have come to reside.118

The question therefore is what

should be the standard of treatment to be meted out by the state to such aliens.

4.2 Standard of Treatment of Aliens

There are basically two standards of treatment proposed by:

(a) Developing countries („national treatment standard‟),

(b) Developed countries („international minimum standard‟)

Most developing countries have “argue[d] that the standard [of treatment] is a national one,

requiring states to treat aliens as well as they treat their own nationals, [While developed

countries] maintain that there is an international minimum standard, which accords aliens a

higher standard of treatment where the national standard fails to meet international standards”.119

The reasoning behind the „national treatment standard‟ brought about the Calvo Doctrine.120

This

doctrine was to prevent western powers from interfering with the internal affairs of other states.

There is usually a clause in a contract between a state and an alien in which the alien agrees to

confine himself/herself to the available local remedies and to renounce diplomatic protection.121

This doctrine has faced several criticisms on the reasoning that under international law,

diplomatic protection is the right of the state and thus an individual does not have the right to

renounce it.122

118



Ibid at 298, Shaw International Law (2008) 824. 121

Ibid at 298. 122

Oppenheim International Law Jennings and Watts (eds.) 1992 at 930-931.

43

What then is an international minimum standard? In the Roberts Claim123

, an American was

arrested and detained for seven months without trial. He was housed in a small cell with 30 to 40

other Mexican prisoners. The cell was only 20 feet wide within a primitive building. There was

poor ventilation, poor sanitary accommodation, no facility for them to clean themselves, no

exercise, and the food was scarce, unclean and coarse. The United States sued the Mexican

government for the treatment Mr. Robert received and they responded that he was treated in the

same way as other Mexican prisoners were treated. The Court held that:

“Facts with respect to equality of treatment of aliens and nationals may be important in

determining the merits of a complaint of mistreatment of an alien. But such equality is

not the ultimate test of the propriety of the acts of authorities in the light of international

law. That test is, broadly speaking, whether aliens are treated in accordance with ordinary

standards of civilization”.124

The definition and content of the international minimum standard have remained unclear. The

content or what international minimum standard may entail is gotten from different cases.125

In

the Janes Claim126

, international minimum standard included the failure to apprehend and

prosecute someone who had wrongfully caused an injury to an alien. In the Roberts Claim127

,

international minimum standard included an unreasonable long detention, harsh and unlawful

treatment while in prison.

“Today…the standard of treatment to be accorded to aliens in respect of a personal right is the

international [minimum standard]…found in international human rights instruments and

customary international law”.128

These provisions refer to all individuals, not just aliens or

123

Roberts Claim (United States of America v. United Mexican States) 1926 (4) RIAA 77. Accessed from http://untreaty.un.org/cod/riaa/cases/vol_iv/77-81.pdf, on 16

th of April, 2012 at 11:15.

124 Ibid at 80.

125 Shaw International Law (2008) 824.

126 Laura Janes et al (United States of America v. United Mexican States) 1926 (4) RIAA 82. Accessed from

http://untreaty.un.org/cod/riaa/cases/vol_iv/82-98.pdf, on 16th

of April, 2012 at 11:29. 127

Roberts Claim (United States of America v United Mexican States) 1926 (4) RIAA 77. Accessed from http://untreaty.un.org/cod/riaa/cases/vol_iv/77-81.pdf, on 16

th of April, 2012 at 11:15.

128 Dugard International Law A South African Perspective (2011) 301.

http://untreaty.un.org/cod/riaa/cases/vol_iv/77-81.pdf



44

nationals, within the jurisdiction of a state and are to be treated without any form of

discrimination.129

The minimum standard accorded to property right is even less clear.130

4.3 Expulsion of Aliens

There is no right of entry for an individual into a country of which he or she is not a citizen or a

national. On entry, such an individual is treated as an alien and may be expelled or removed

therefrom. When expelling such an alien, humane treatment is expected and reasons for such

expulsion must be provided as and when needed. In the Buffolo Case, an Italian was expelled

from Venezuela and the Court stated that: The “states possess a general right of expulsion, but it

could only be resorted to in extreme circumstances and accomplished in a manner least injurious

to the person affected”.131

The International Covenant on Civil and Political Rights provides that “[a]n alien lawfully in the

territory of a State Party to the Covenant may be expelled therefrom only in pursuance of a

decision reached in accordance with the law and shall, except where compelling reasons of

national security otherwise require, be allowed to submit the reasons against his expulsion and to

have his case reviewed by, and be represented for the purpose before, a competent authority or a

person or persons especially designated by the competent authority”.132

The European

Convention on Establishment, 1955, provides in Article 3 paragraph 1 that “[n]ationals of any

Contracting Party lawfully residing in the territory of another Party may be expelled only if they

endanger national security or offend against [public order] or morality”.

States therefore have the right to regulate the entry and exit of aliens within their territory and

may restrict participation in activities like politics, employment etc, but should do so in a

humane manner. In Nyamakazi v. President of Bophuthatswana it was stated that: 129

Some of the instruments are: Article 2 of the International Covenant on Civil and Political Rights, 1966. Provides that each state party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the right recognized in the present Covenant, without distinction as to race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Also in Article 1 of the European Convention on Human Rights,1950. 130


(1903) 10 RIAA 528, as cited by Shaw International Law (2008) 826. 132

Article 13 of International Covenant on Civil and Political Right, 1966.

45

“The international standard relating to the treatment of aliens postulates that if a State

admits an alien into its territory, it must conform in its treatment of him to the

internationally determined standard. This means that a State should accord treatment to

the alien which measures up to the ordinary standards of civilization. The international

standard of treatment of aliens applies in respect of fundamental human rights such as

right to life and integrity of persons but not political rights… [t]here is also a rule of

international law which provides that a State may impose restrictions upon the exercise of

certain rights by aliens admitted into its territory. A State may thus, therefore, impose

restrictions upon the participation by aliens in political or public life, ownership of

property by aliens or upon their taking employment”. 133

The Supreme Court of Appeals also stressed the need for humane treatment in Minister of Home

Affairs v. Watchenuka, by stating that:

“Human dignity has no nationality. It is inherent in all people - citizens and non citizens

alike - simply because they are human. And while that person happens to be in this

country – for whatever reason – it must be respected…”.134

In the treatment of aliens, rights have been accorded to them under customary international law.

One of such rights is the provision of Article 36 of the Vienna Convention on consular relations.

133

1992 (4) SA 540 at 579(C-E) (BGD). 134

2004 (4) SA 326 at 339 (Para 25) (SCA).

46

4.4 Consular Protection

This is regulated by article 36 of the Vienna Convention on Consular Relations (1963) which

provides as follows:

1 “With a view to facilitating the exercise of consular functions relating to nationals of the

sending State:”

a. “Consular officers shall be free to communicate with nationals of the sending State

and to have access to them. Nationals of the sending State shall have the same

freedom with respect to communication with and access to consular officers of the

sending State;”

b. “if he so requests, the competent authorities of the receiving State shall, without

delay, inform the consular post of the sending State if, within its consular district, a

national of that State is arrested or committed to prison or to custody pending trial or

is detained in any other manner. Any communication addressed to the consular post

by the person arrested, in prison, custody or detention shall be forwarded by the said

authorities without delay. The said authorities shall inform the person concerned

without delay of his right under this sub paragraph;”

c. “consular officers shall have the right to visit a national of the sending State who is

in prison, custody, or detention, to converse and correspond with him and to arrange

for his legal representative. They shall also have the right to visit any national of the

sending State who is in prison, custody or detention in their district in pursuance of a

judgment. Nevertheless, consular officers shall refrain from taking action on behalf of

a national who is in prison, custody or detention if he expressly opposes such action.”

In the LaGrand Case (Germany v. United States)135

, The International Court of Justice held that:

“It follows that when the sending State is unaware of the detention of its nationals due to

the failure of the receiving State to provide the requisite consular notification without

135

LaGrand Case (Germany v. USA) 134 ILR 1 (2001) 59.

47

delay…the sending State has been prevented for all practical purposes from exercising its

rights under Article 36 paragraph 1…”.136

In the Avena Case137

, the International Court of Justice took the same approach as in the

LaGrand Case and found that the United States had breached its obligation provided for under

Article 36(1) (b) of The Vienna Convention against Avena and other Mexican nationals and the

Mexican state.138

In the case of Medellin v. Texas139

, Jose Ernesto Medellin an eighteen year old Mexican citizen

had lived in the United States since pre-school. He was a member of the “black and whites”

gang. He was convicted of capital murder and sentenced to death in Texas for the gang rape and

murder of two teenage girls. The two girls were walking home on June 24, 1993 when they

encountered Medellin and his gang members. Medellin tried to engage one of the girls in a

conversation but when she tried to run away, Medellin threw her to the ground. The other gang

members grabbed the other girl and they were subsequently raped and murdered, and their

bodies discarded. Medellin was personally responsible for strangling at least one of the girls with

her own shoe lace. Medellin was later arrested and after being given the Miranda warnings, he

signed a written waiver and made a detailed written confession but the local law enforcement

officers did not inform Medellin of his Vienna Convention rights to notify the Mexican

Consulate of his arrest. Medellin was later convicted of murder and sentenced to death. His

conviction and sentence were upheld on appeal. On being aware of his rights under the Vienna

Convention, he raised the claim for a post conviction relief. The State trial Court held that the

claim was procedurally defaulted because Medellin had failed to raise it at trial or on direct

review. The claim was also rejected by the Court because Medellin had failed to show that any

notification of the Mexican authorities will impact on the validity of his conviction or sentence.

While Medellin‟s application for an appeal was pending in the Fifth Circuit, the International

Court of Justice issued its judgment in the Avena case. The Court held that the United States had

violated Article 36 paragraph 1(b) of the Vienna Convention by failing to inform the 51 named

136


Case Concerning Avena and Other Mexican National (Mexico v. USA) (2004) 134 ILR 95. 138

Case Concerning Avena and Other Mexican National (Mexico v. USA) (2004) 134 ILR 95 at 136. 139

(2008) 136 ILR 689.

48

Mexican nationals, including Medellin, of their rights under the Vienna Convention. The Fifth

Circuit denied Medellin‟s application holding that the Vienna Convention did not confer

individually enforceable rights. The court though granted Medellin with an order of certiorari but

before oral arguments was heard, the President of the United States, George W. Bush issued a

memorandum to the Attorney General of United States stating that “…United States will

discharge its international obligations under the decision of the International Court of Justice in

Avena, by having State courts give effect to the decision in accordance with general principles of

comity in cases filed by the 51 Mexican nationals addressed in that decision…”.140

Relying on the United States memorandum and the decision by the International Court of Justice,

Medellin filed a second application to the State Court for habeas relief. Thereafter the order for

certiorari which was given was dismissed. Subsequently, the majority decision by Chief Justice

Roberts in dismissing the second state habeas application held that the Vienna Convention

imposed an international legal obligation on the United States but not all such obligations

automatically constitute a binding law that can be enforced by the United States.

“No one disputes that the Avena decision- a decision that flows from the treaties through

which the United States submitted to ICJ jurisdiction with respect to Vienna Convention

disputes- constitutes an international law obligation on the part of the United States. But

not all international law obligations automatically constitute binding federal law

enforceable in United States courts. The question we confront here is whether the Avena

judgment has automatic domestic legal effect such that the judgment of its own force

applies in state and federal courts”. 141

The Court further held that the President does not have the authority to act except empowered by

the constitution or by an act of Congress. The President cannot therefore mandate the courts

through a memorandum to give effect to the International Court of Justice decision in the Avena

Case.

“… The President‟s authority to act, … must stem either from an act of Congress or from

the Constitution itself…[W]hen the President takes measures incompatible with the

140

Ibid at 698. 141

Ibid at 698-699.

49

expressed or implied will of Congress, his power is at its lowest ebb, and the Court can

sustain his actions only by disabling the Congress from acting upon the subject”.142

In the dissenting opinion by Justice Breyer, it was stated that the decision of the International

Court of Justice in the Avena case was binding on domestic courts as the United States accepted

the jurisdiction of the Court under the Optional Protocol for the purposes of compulsory

settlement of disputes.143

He (Justice Breyer) also warned of the risk this kind of decision would

have on the country and on its nationals abroad:

The decisions of the United States Judiciary on the issue produce practical anomalies,

[t]hey unnecessarily complicate the President‟s foreign affairs task … for example, …

they increase the likelihood of worsening relations with our neighbor Mexico, of

precipitating actions by other nations putting at risk American citizens who have the

misfortune to be arrested while travelling abroad, or of diminishing our nation‟s

reputation abroad as a result of our failure to follow the „rule of law‟ principles that we

preach”.144

4.5 Expropriation of Foreign Property

Where a state destroys or confiscates the property of an alien, that state violates the international

minimum standards and more so where there was no compensation. But when there is state

policy on nationalization, the rules applicable in terms of the responsibility of that state is not

clear. Although international law is not against expropriation of alien property, the area of

concern is as to the conditions that need to be met or fulfilled by the state to prevent the act of

nationalization from being unlawful.145

“On one hand, capital-exporting countries require some

measure of protection and security before they will invest abroad, while the capital- importing

142

Ibid at 713-714. 143

Ibid at 724. 144

Ibid at 745. 145

Dugard International Law A South African Perspective (2011) International Law A South African Perspective (2011) 303.

50

countries are weary of the power of foreign investments and the drain of currency that occurs,

and are often stimulated to take over such enterprises”.146

Issues relating to alien property usually arise from the contract between the state and the alien

company. The applicable rule depends on the content of the agreement. In certain cases,

international law will be the applicable law, while in some other cases the law of the contracting

state is applicable.147

Hence due to issues of disagreement and expropriation of property and

assets of the foreign company, the foreign investors would usually want to enter into contracts,

agreements or concessions that will protect their interests.

In Libya v. Texaco one of the conditions included in the concession between the parties is as

follows: “This concession shall be governed by and interpreted in accordance with the principles

of the law of Libya common to the principles of international law and in the absence of such

common principles then by and in accordance with the general principles of law, including such

of those principles as may have been applied by international tribunals”.148

The Court held that,

“the contracts were governed by the principles of Libyan law in so far as they were common to

principles of international law and in the absence of such conformity, by general principles of

law. The deed of concession was within the domain of international law”.149

The kind of clause in the Texaco Case serves to „internationalize‟ the deed of concession so that

in the event of repudiation, international law will apply.

In Van Zyl v. Government of South Africa, the Court held that the government of Lesotho did not

enter into an agreement which is internationalized and refused to accept the claim by Van Zyl

that the contract was internationalized.150

Today, investors would prefer to enter into Multi-lateral or Bi-lateral Investment Treaties that

would give them direct access to international tribunals instead of relying on the customary

international law system of diplomatic protection which is marred by uncertainties. Bilateral

146


Ibid at 829. 148

Texaco v. Libya Arab Republic (preliminary award) (1977) 53 ILR 389 at 442. 149

Ibid at 391. 150

Van Zyl v. Government of the Republic of South Africa 2008 (3) SA 294 at 315- 317 (SCA).

51

Investment Treaties (BITS) and International Centre for the Settlement of Investment Disputes

(ICSID) will be discussed briefly below

4.5.1 Bilateral Investment Treaties (BITS)

A BIT has been defined as “an international legal instrument through which two countries set

down rules that will govern investments by their respective nationals in the other‟s territory”.151

It was also defined as “an agreement between two countries dealing with the treatment of

investment by individuals or companies from either party in the territory of the other party”.152

Its popularity has grown over the years due to its regulation and procedures in the protection of

foreign investments”.153

After World War II, there was a need to modify international law on foreign investment due to

the fast expansion of international investment. The need for an effective investment law was

necessary to effectively protect the interest of foreign investors as the existing laws and practices

were marred by inadequacies. Some of the inadequacies included;

1. Contemporary investment practices were not taken into account hence major

concerns of the foreign investors could not be addressed i.e processes of making

monetary transfers were not addressed.

2. The laws or principles that were in existence were either too vague or had several

interpretations.

3. There was no effective enforcement mechanism for the foreign investors against a

host state who have reneged from their contractual obligations.154

151

Salacuse and Sullivan “Do BITS Really Work? An Evaluation of Bilateral Investment Treaties and their Grand Bargain” in Sauvant and Sachs (Eds) The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties and Investment Flaws (2009) 109. 152

Strydom, in his work on The Legal Principles Relating to Climate Change (2011) 29. 153

Ibid. 154

Salacuse and Sullivan “Do BITS Really Work? An Evaluation of Bilateral Investment Treaties and their Grand Bargain” in Sauvant and Sachs (eds.) The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties and Investment Flaws (2009) 111.

52

Today, foreign investors can breathe a sigh of relief as their investments are adequately and

effectively protected. There are now „comprehensive, specific and largely uncontested set of

international legal rules to give a protective shelter to foreign investors. And in the case of

misunderstanding, seizure of investment or refusal to respect contractual agreement, there is an

effective enforcement mechanism to pursue the foreign investor‟s claim against the host

country”.155

This enforcement mechanism, in the form of The Convention on the Settlement of Investment

Disputes between States and the nationals of others States was established in 1965. The

Convention in turn created the International Centre for the Settlement of Investment Disputes

(ICSID). Provided that both parties to the agreement acceded to the Convention, disputes will be

settled by the Arbitration.156

In the Von Abo Case, the applicant requested the Government of

South Africa to become a party to the ICSID so that compensation claims would be pursued

under the ICSID complaint mechanisms against the Government of Zimbabwe (who was already

a contracting party). This request was denied.157

155

Ibid at 112-113. 156

Van Zyl v. Government of the Republic of South Africa 2008 (3) SA 294 (SCA) at 317. The Supreme Court of Appeal stated that South Africa is not a Contracting Party to the ICSID. 157

Von Abo v. President of South Africa 2009 (5) SA 532 (CC) at 535-8.

53

CONCLUSION

The state has a right in international law against any other state that infringes on its rights

whether directly or indirectly (through its nationals). This right is discretionary in nature

meaning that the state has the right to determine if it will act, when and how to act. But there are

several situations where the state has refused to act, i.e in the British Case of Abassi and Another

v. Secretary of States for Foreign and Commonwealth Affairs and the Von Abo Case as discussed

above. International Court of Justice has stated that where the state refuses to act, this does not

create a vacuum. In the Barcelona Traction Case, the Court stated that the right is that of the

state and the discretion to use it lies with it. “This cannot be regarded as amounting to a situation

where a violation of law remains without a remedy…a legal vacuum. There is no obligation upon

the possessors of rights to exercise them. Sometimes no remedy is sought, though rights are

infringed. To equate this with the creation of a vacuum would be to equate a right with an

obligation”.158

However, the law states that when there is a wrong, there must be a remedy. Therefore if the

state is unwilling to act, the individual who has suffered a wrong in the hands of a delinquent

state is still without a remedy. What then is the fate of that individual? According to the LaGrand

and the Avena‟s case the International Court of Justice is of the view that there is a progression to

the fact that an individual has some kind of right in international law but still, individuals do not

have the locus standi to go before it and cannot insist on being protected by his/her home state in

international law. There should be a forum where such an individual who finds himself in this

kind of dilemma can seek redress.

Under the municipal law, it has been established in the Kaunda Case, that the state has a duty to

diplomatically protect its national although discretion still lies with the state in doing so.

However if a state fails to do so, the individual can seek redress with the judicial system. But to

actually get this redress will be influenced by the independence of the judicial system. Owing

from the cases examined above, it is evident that the South African Judiciary is independent.

158

Ibid at 218-9 (Para 80).

54

From the cases decided by the South African judicial system, it reveals that the decisions of the

International Court of Justice are highly favoured and the Court‟s decisions are influenced by

them.

55

BIBLIOGRAPHY

BOOKS

Amerasinghe State Responsibility for Injuries to Aliens 1967.

Borchard The Diplomatic Protection of Citizens Abroad or The Law of International Claims

1915.

Currie, Forces and Osterveld, International Law: Doctrine, Practice and Theory 2007.

Cuthbert Joseph, National and Diplomatic Protection 1969.

Dugard, International Law A South African Perspective 2010.

Green International Law 1987.

Kimminga and Scheinin (eds.) The Impact of Human Rights Law on General International Law

2009.

O‟Connell International Law 1965.

Oppenheim, International Law Jennings and Watts (eds.) 1992.

Sauvant and Sachs (Eds.) The Effect of Treaties on Foreign Direct Investment: Bilateral

Investment Treaties, Double Taxation Treaties and Investment Flaws 2009.

Shaw, International Law 2008.

Vattel Law of Nations 1758 (English Translation).

56

CASES

Abbassi and Another v Secretary of States for Foreign and Commonwealth Affairs (2002) 126

ILR 685.

Ambatielos Claim (Greece v United Kingdom) (1956) 24 ILR 291.

Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (2nd

Phase) (1970) 46

ILR 178.

Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Preliminary

Objections) (1964) 46 ILR 1.

Case Concerning Avena and Others Mexican National (Mexico v United States of America)

(2004) 134 ILR 95.

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran)

(1979) 61 ILR 530.

ELSI Case (United States v Italy) (1989) 84 ILR 312.

Finnish Vessels in Great Britain during the War (Finland v Great Britain) (1934) 7 ILR 231.

Government of Republic of South Africa and Others v Von Abo 2011 (5) SA 262 (SCA).

Interhandel Case (Switzerland v United States of America) Preliminary Objections 27 ILR 475

(1959)

Janes Claim (United States of America v United Mexican States) 1926 (4) RIAA 82.

Kaunda and Others v President of the Republic of South Africa and Others 2005 (4) SA 235

(CC).

LaGrand Case (Germany v United States of America) (2001)134 ILR 1.

57

Mavrommatis Palestine concession case (Greece v United Kingdom) PCIJ Reports, Series A No

2 (1924) 12

Medellin v Texas (2008) 136 ILR 689.

Merge Claim, 1955.

Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA).

Nottebohm Case (Liechtenstein v Guatemala) 1955 22 ILR 349

Nyamakazi v President of Bophuthatswana 1992 (4) SA 540 (BGD).

Roberts Claim (United States of America v United Mexican States) 1926 (4) RIAA 77.

Taxaco v Libya Arab Republic (Preliminary Award) (1977) 53 ILR 389.

The Buffolo Case (1903) 10 RIAA 528.

The Corfu Channel Case (United Kingdom v Albania) Merits (1949) 16 ILR 155.

Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA).

Von Abo v Government of Republic of South Africa 2009 (2) SA 526 (TPD).

Von Abo v Government of Republic of South Africa 2009 (5) SA 345 (CC).

Von Abo v Government of Republic of South Africa 2010 (3) SA 269 (GNP).

LEGISLATION

British Nationality Act, 1981.

Convention on Certain Questions Relating to the Conflict of Nationality Law, 1930

Convention on the Nationality of Married Women, 1957.

European Convention on Establishment, 1955.

58

European Convention on Human Rights, 1950.

Hague Convention on the Conflict of Nationality Laws, 1930.

International Convention on the Settlement of Investment Disputes, 1965.

International Covenant on Civil and Political Rights, 1966.

International Law Commission‟s Draft Article on Diplomatic Protection, 2006.

South African Citizenship Act 17 of 2004, as amended.

South African Citizenship Act 88 of 1995, as amended.

Treaty Establishing the European Community, 2002.

Universal Declaration on Human Rights, 1948.

Vienna Convention on Consular Relations, 1963.

OTHERS

Commentary to the International Law Commission‟s Draft Article on Diplomatic Protection.

Strydom, Legal Principles Relating to Climate Change, 2011.

United Nations Document A/CN4/503, 2000.

WEB SITES

http://earthlink.net/-dybel/Documents/lawofnations,vattel.htm

http://untreaty.un.org/cod/riaa/cases/volvi/77-81.pdf


http://earthlink.net/-dybel/Documents/lawofnations,vattel.htm



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