When a State invokes a right of a national it is obliged, in one way or another, to involve the national at the level of procedure and of any transaction that takes place.Footnote 1
As early as 1920, when the Permanent Court of International Justice (PCIJ, Permanent Court) was being created by the Advisory Committee of Jurists, Mr. Albert de Lapradelle from France questioned the extent to which the state should protect its citizens, from a procedural standpoint. ‘Should the State leave to the individual the task of pleading his own case before the Court to which he has gained access by the aid of his Government, or should the State, having taken up the case for its subject, conduct the case alone before the Court?’Footnote 2 By quoting examples, he advocated that individuals wished to take part themselves in the proceedings.Footnote 3 Later in discussions, Mr. Francis Hagerup from Norway claimed that the individual could plead before the future Permanent Court, since arbitration accepts this practice.Footnote 4
When contemplating the role of the individual in inter-state cases before the International Court of Justice (ICJ), diplomatic protection is perhaps the first example that comes to mind. Scholarship has focused considerably on the ‘humanisation’ of the practice of diplomatic protection in the Court’s jurisprudence, which has made great strides over the last two decades.Footnote 5 In contrast, scholarship has overlooked how the individual has been procedurally involved in diplomatic protection proceedings. Through exploring the nature and jurisprudential evolution of diplomatic protection, I argue in this chapter that while great strides have been made to humanise the law of diplomatic protection, its practice in the courtroom is not in alignment with this as the relevant individual does not participate in proceedings. This non-alignment impacts the procedural legitimacy of the Court in two ways: democratic standards are not upheld due to the absence of injured individuals in proceedings, and technocratic expertise is harmed where their non-participation results in the absence of significant evidence.
Diplomatic protection is an avenue of redress made available to a natural or legal person who has been injured by a foreign state, carried out by that individual’s state of nationality, on his or her behalf. The International Law Commission’s 2006 Draft Articles on Diplomatic Protection define it as ‘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’.Footnote 6 The ICJ specified in its very first advisory opinion that an international organisation may also claim reparations from a government that injured one of the organisation’s agents.Footnote 7 However, this chapter will focus on inter-state diplomatic protection cases involving individuals who are not agents of international organisations.
While this chapter focuses on diplomatic protection in the context of judicial settlement at the ICJ, diplomatic protection may be exercised by the state using any means of pacific settlement of disputes stipulated in Article 33 of the United Nations Charter: ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’.Footnote 8 Given the jurisdictional hurdles before the ICJ, diplomatic protection is largely non-contentious in state practice.Footnote 9
The practice of diplomatic protection existed years before its development by the World Court and its predecessor – in fact, “ever since the existence of international relations between [states].”Footnote 10 Although the concept of governments protecting their nationals can be traced back to much earlier,Footnote 11 diplomatic protection in the modern sense of the term finds its origins in the eighteenth century through the practice of letters of reprisal.Footnote 12 It was also seen in practice through many arbitral awards, such as the 1794 Jay Treaty (United States of America vs. United Kingdom), the 1795 Spanish–United States of America (US) Commission, and a number of arbitrations.Footnote 13 However, “the basic premise of diplomatic protection is traced to Vattel”,Footnote 14 who wrote in 1797:
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.Footnote 15
Diplomatic protection was also practised in certain mixed claims commissions following the First World War.Footnote 16 It is therefore no surprise that this practice was consequently concretised in the judgments of the PCIJ; it was already anticipated by the Advisory Committee when it decided to reject the locus standi of individuals, as examined in Chapter 1.Footnote 17 Thus, in its lifetime of seventeen years, the PCIJ produced numerous judgments on contentious cases which were related to the diplomatic protection of individuals.Footnote 18 Others were exercised in favour of corporations (legal persons).Footnote 19 Diplomatic protection was also indirectly invoked in other judgments.Footnote 20 In comparison, the ICJ has dealt with fewer diplomatic protection cases.Footnote 21 Although this chapter focuses on diplomatic protection of the individual, certain examples of cases involving corporations will be mentioned where pertinent.
There is a manifest reason why the practice of diplomatic protection seemingly occupies more of a residual role as opposed to its principal one of the past.Footnote 22 During the Permanent Court’s lifetime, the practice of diplomatic protection filled somewhat of a void in the international legal system by allowing individuals to participate in it. Indeed, the practice implied, in its very essence, that the individual did not possess a legal personality of his or her own,Footnote 23 and was an object of international law or a good on which the state had a right (jus in rem).Footnote 24 Today, however, there are many different avenues of judicial redress for individuals directly on the international plane. Before the World Court, state litigants increasingly evade the formal channels of diplomatic protection but do claim to be acting as parens patriae: on behalf of their people to assert their putative private rights.Footnote 25
This evolution may cause some to question the relevance or added value of diplomatic protection, which has arguably become gradually unbefitting with the rise of the individual as a bearer of obligations and rights under international law.Footnote 26 Despite this decline in popularity within the context of international adjudication, diplomatic protection remains one of many avenues for the individual. Further, given its rich history within the practice of the World Court, any study of this kind would be incomplete without it.
An undeniable dichotomy exists between the legal framework of diplomatic protection, unpacked in the first part of this chapter (Section 2.1), and its procedural enactment, explained in the second part (Section 2.2). To effectively describe the legal framework of diplomatic protection, I first dismantle the famous Mavrommatis fiction’s claim that the state is the sole injured party (Section 2.1.1). I then argue that other conditions for diplomatic protection (such as nationality and the exhaustion of local remedies) and its features (such as state discretion and state responsibility), have been increasingly humanised to place emphasis on the individual. Nonetheless, the second part of this chapter points to the dichotomy: this directly injured individual does not participate in proceedings at the Peace Palace and does no more than occasionally provide written testimony in the government’s pleadings. The third and final part of this chapter will therefore provide suggestions to advocate for stronger procedural participation for the injured individual in cases of diplomatic protection at the ICJ (Section 2.3). Section 2.4 concludes.
2.1 The Mavrommatis Fiction: Fabrication and Humanisation
The practice of diplomatic protection at the Court hinges upon the fulfilment of three conditions: the individual must be a national of the protecting state, the individual must have exhausted domestic remedies, and an international legal norm must have been violated. This aside, diplomatic protection is governed by three features: first, diplomatic protection is the discretionary right of the state; second, it can lead to reparations under the law of state responsibility, and third (and most importantly), there is a legal fiction upon which diplomatic protection rests. Collectively, these comprise the legal framework of diplomatic protection, at the heart of which lies the Mavrommatis fiction.
The concept of legal fiction was born with the very idea of diplomatic protection. The Mavrommatis Palestine Concessions (Greece v. Britain) PCIJ judgment of 30 August 1924 was the first judgment to not only consolidate the Vattelian premise (mentioned earlier) and the concept of the legal fiction but also to lay the groundwork for the development of the doctrine of diplomatic protection.Footnote 27 This judgment was centred on a dispute between a Greek national, Euripide Mavrommatis, and the British government. Before the First World War, when Palestine was part of the Ottoman Empire, the Ottoman authorities concluded certain contracts with Mr. Mavrommatis, which granted him concessions for certain public works to be constructed in Palestine. Some years later, after the collapse of the Ottoman Empire with its defeat in 1918, the British government, acting as the Mandatory for Palestine under a Mandate negotiated with the League, granted various concessions to a third party (the Rotenberg concessions), partly overlapping those of Mr. Mavrommatis. Mr. Mavrommatis believed that the British Government and Palestine did not recognise the full extent of his rights; they had violated certain international legal obligations, namely, Protocol XII of the Lausanne Peace Treaty between Turkey and the Allied Powers. Eventually, the Greek government intervened and submitted the case to the PCIJ under Article 26 of the Mandate for Palestine.Footnote 28
As Article 34 of the PCIJ Statute limited disputes before it to states alone, or members of the League, the Permanent Court explained that
It is true that the dispute was at first between a private person and a State – i.e. between M. Mavrommatis and Great Britain. Subsequently the Greek Government took up the case. The dispute then entered upon a new phase; it entered the domain of international law, and became a dispute between two States. Henceforward therefore it is a dispute which may or may not fall under the jurisdiction of the Permanent Court of International Justice.Footnote 29
It then wrote the following cardinal passage:
It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. 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 rights to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is the sole claimant.Footnote 30
This cemented the concept in diplomatic protection today known as a legal fiction – which is also referred to as the Mavrommatis fiction (both terms are used interchangeably in this chapter). This fiction stipulates that the injury to the individual as a national is an injury to the state itself, and thus, the state of nationality is seizing the Court on its own behalf.Footnote 31 The Mavrommatis fiction was affirmed by the PCIJ in other cases; for example, the Chorzów Factory case and the Serbian Loans case.Footnote 32 The consequence of this Mavrommatis fiction is that the concerned private party is completely invisible to the Court. For instance, the Permanent Court stated in Société Commerciale de Belgique that it was not entitled to oblige the Belgian government to enter into negotiations with the Greek government ‘and still less the company which is not before it’.Footnote 33 In brief, the Mavrommatis fiction tells us two crucial things: first, the state is defending its own right, and not the individual’s right. Second, the state is the injured party in the eyes of the Court.Footnote 34
This section argues that the legal fiction upon which the practice of diplomatic protection rests is at odds with the reality in which the individual is at the centre of the practice. It first argues that the fiction itself inaccurately portrays whose right is being invoked and whose injury is at the root of the dispute (Section 2.1.1). It then argues that the two individual-focused conditions of diplomatic protection – nationality of the individual and their exhaustion of local remedies – indicate that the individual is at the centre of the practice (Section 2.1.2). Furthermore, the more state-centred features of diplomatic protection – reparations to the state under the law of state responsibility, and state discretion – have both been recently challenged by human rights perspectives (Section 2.1.3). Both the conditions and features of diplomatic protection therefore serve to further weaken the Mavrommatis fiction.
2.1.1 The Mavrommatis Fiction of Diplomatic Protection: Fabrication versus Reality
A legal fiction may be defined as a claim accepted as true for legal purposes but that is, in reality, fallacious.Footnote 35 In the context of diplomatic protection, a legal fiction is applied when assessing whose right is being protected. In reality, a right of the individual has been violated. This, in turn, has left the individual injured. However, for the purposes of this practice, the state claims that it is defending its own right, as a result of its own fictive injury. This is because, during the Vattelian era in which diplomatic protection materialised, the traditional positivist doctrine was dominant, and individuals had very little to no means of accessing international justice (Section 1.1). Thus, in an era whereby individuals did not exist in the international legal system, their protection was guaranteed through this legal fiction.Footnote 36 With considerations of justice in mind, it arose out of the need to remedy the lack of locus standi of the individual on the international plane.Footnote 37 One may question to what extent this famous Mavrommatis maxim is still entirely valid today. The very notion may be called into question for two reasons: whose right is being invoked and whose injury is at the root of the dispute.
First, the veil has progressively been lifted to reveal that the right being invoked is predominantly the individual’s as opposed to the state’s. Historically, the legal fiction assumed that the state was ‘in reality’ exercising its own right – to demand that international law be respected towards its nationals and to act in order to enforce this rightFootnote 38 – as opposed to the right of the individual.
Today, the International Law Commission (ILC), following a heated debate on this question,Footnote 39 settled for a formulation of Draft Article 2 on Diplomatic Protection that ‘leave[s] open the question whether the state exercising diplomatic protection does so in its own right or that of its national – or both’.Footnote 40 Thus, the ILC’s definition of diplomatic protection makes no reference to the right of the individual nor that of the state.Footnote 41 This definition was borrowed by the Court in the preliminary objections phase of the Ahmadou Sadio Diallo case (Republic of Guinea v. Democratic Republic of the Congo), proving that the Court, too, considered this dual possibility.Footnote 42 Yet, in other instances, the Court has recognised individuals’ rights in the context of diplomatic protection proceedings.Footnote 43 The premise that the real right being protected is the state’s is inaccurate. In reality, the real right being protected is that of the individual, but, for the purposes of the fiction, the state’s right is said to have been violated as well.
This is further emphasised by the condition of diplomatic protection that the minimum standard of the treatment of aliens or international human rights law must have been violated in order for the individual to request that his or her government seize the Court.Footnote 44 As the ICJ acknowledged in 2007 in the preliminary objections phase of Diallo, ‘Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights’.Footnote 45 As international human rights are individuals’ rights, this serves to highlight the flaw in claiming that the state is ‘in reality’ exercising its own right.
The second reason why the concept of the legal fiction may be called into question pertains to its underlying assumption that in the eyes of the Court, the state is the sole injured party. The injury of the individual as the starting point is ‘irrelevant’, according to this maxim. However, the Court itself has slightly distanced itself from this idea in two ways. First, the Court has acknowledged an injury from the state and the individual in a number of cases. Indeed, a distinction has developed in the Court’s jurisprudence of three types of claims: direct, indirect, or mixed. A direct claim is one in which the state has been directly injured and, therefore, has a reason distinct from the reason of its national to bring an international claim.Footnote 46 For instance, it may have suffered a moral damage (then the breach consists in conduct discriminating against individuals having its nationality) or a material damage (when the breach affects an economic interest of the state).Footnote 47 An indirect claim is one in which the individual has been principally injured, and the state only indirectly injured, through its national. Finally, a mixed claim is one in which the injury of the individual and of the state are at par.Footnote 48 In each case, the Court will determine which injury – the individual’s or the state’s – is preponderant and, therefore, which type of claim applies. It is important to emphasise that the test based on preponderance is an admission in itself that all claims do in fact include an injury to an individual at their core. Thus, the direct claim does not advocate that the state’s injury is the exclusive one but merely that the state’s injury may be greater than the existing individual’s injury. In an indirect claim, the state’s injury could be entirely fictitious for purposes of the practice of diplomatic protection. However, the individual’s injury cannot ever be fictitious; without a true injury, ‘in reality’, a diplomatic case will not be initiated.Footnote 49
Second, despite this practice, the Court has gone even further by admitting the sole existence of the injury of the individual and not the state in Diallo. In the preliminary objections phase, it relied upon the ILC’s definition of diplomatic protection in its 2006 Draft Articles, which only mentions the injury of the individual and makes no reference to the injury of the state.Footnote 50 In the merits phase, it referred to ‘reparation due to Guinea for the injury suffered by Mr. Diallo’,Footnote 51 and in the compensation phase, it clarified that its ‘inquiry [would] be limited to the injury resulting from the breach of Mr. Diallo’s rights as an individual’.Footnote 52 No mention was made of an injury suffered by Guinea.Footnote 53
To summarise, the Mavrommatis fiction is, in itself, contradictory for two principal reasons. First, it claims that a state is ‘in reality’ exercising its own right, while it is ‘in reality’ exercising the right of the individual. Second, it claims that the state is the sole injured party, while, in fact, the true required injury for a diplomatic protection case to be opened is that of the individual, while the state’s is a fictitious requirement. This problem with the very concept of legal fiction already exposes that the individual is, in fact, at the forefront of diplomatic protection, contrary to what was originally desired. This is further reinforced by the two conditions of diplomatic protection, which will be examined here.
2.1.2 The Two Conditions of Diplomatic Protection: Nationality and the Exhaustion of Local Remedies
An examination into the conditions required in the practice of diplomatic protection demonstrates that the individual is in fact the key actor in the process, serving to further weaken the Mavrommatis premise. The two conditions are as follows: first, the individual being protected must be a national of the protecting state; second, an individual wishing to seize an international jurisdiction through its government must have exhausted local remedies.
The first condition contradicting the Mavrommatis premise is that of nationality. This condition requires that the injured individual be a national of the state that will take up its claim at the ICJ. It was traditionally perceived as not only the link in the form of rights and obligations between an individual and his or her state but also the key for individuals to benefit from rights on the then state-exclusive international plane.Footnote 54 Article 3 of the ILC Draft Articles on Diplomatic Protection reads, ‘The State entitled to exercise diplomatic protection is the state of nationality’.Footnote 55 The PCIJ defined the bond of nationality between the injured individual and the government as a prerequisite to the exercise of diplomatic protection in the Panevezys-Saldutiskis Railway case.Footnote 56
The condition of nationality for the exercise of diplomatic protection stands in clear contradiction to the Mavrommatis fiction. If the practice of diplomatic protection is about the state’s right ‘in reality’ and its injury, then why does it hinge upon the requirement of the individual’s nationality? This requirement is linked to the identity of the individual who has seized the state, placing the the latter centre stage and thus weakening the fiction. The fact that the individual must be a national of that state continuously from the date of injury to the date of the official presentation of the claim is further evidence of this.Footnote 57 Without this requirement, the diplomatic protection case cannot be pursued in international adjudication.
The second condition of diplomatic protection contradicting the Mavrommatis doctrine is the exhaustion of local remedies. This cardinal condition requires, in the words of the ICJ, that ‘the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic system’.Footnote 58 In other words, the individual should have sought to resolve the issue on the domestic plane before taking it to an international court. As well as being featured in international conventionsFootnote 59 and codified by the ILC in both its Articles on State ResponsibilityFootnote 60 and on Diplomatic Protection,Footnote 61 the exhaustion of local remedies criterion has been consistently characterised as customary practice by the PCIJ and the ICJ.Footnote 62 The condition of the exhaustion of local remedies is one of the most evident examples of inconsistency with the Mavrommatis fiction that the state is asserting its own right. If this were so, then it is unclear why the individual must have exhausted local remedies first, in order for the state’s claim to be admissible.Footnote 63 This condition underlines the central position of the individual in diplomatic protection.Footnote 64
2.1.3 The Two Features of Diplomatic Protection: State Discretion and State Responsibility
The contradictions of the Mavrommatis fiction (Section 2.1.1), and the conditions of diplomatic protection (Section 2.1.2) point towards the key role of the individual in this context. This is further evidenced by two further features of diplomatic protection: the discretionary right of the state to take up the individual’s matter and the due reparations under state responsibility. Both features have been challenged by an increasing human rights discourse, which serves to place more emphasis on the individual’s key role in the practice of diplomatic protection. They will be examined in turn.
The first feature is state discretion. The state has the discretion to decide whether to take up the individual’s case, as confirmed by the PCIJ when it stated, ‘It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another State’.Footnote 65 Indeed, governments have the right to protect their citizens but are not obliged to under international law. In other words, as confirmed by the Court in Barcelona Traction, LaGrand and the ILC in its Draft Articles on Diplomatic Protection, individuals are not entitled to diplomatic protection as a matter of right.Footnote 66
This discretionary right has been perceived to stand starkly in contrast with a state’s international treaty obligations to defend its nationals’ human rights. It has been claimed that diplomatic protection is a legal or moral duty of the state.Footnote 67 Indeed, the Sixth Committee of the United Nations General Assembly had noted that some states enshrined in their domestic legislation that the state does indeed have an obligation to protect its nationals abroad: some phrased their legislation to state that the individual has a right to receive diplomatic protection or is entitled to this protection, and others guaranteed this protection or established that the government has a duty.Footnote 68 It has also been argued that a discretionary decision of the government may be reviewed by the national judiciary, which puts significant pressure on governments to respect human rights when confronted with a request for diplomatic protection.Footnote 69 It was even proposed by former ILC Special Rapporteur John Dugard that the state’s discretionary right in diplomatic protection should be limited where jus cogens norms have been violated.Footnote 70
Although rejected by the ICJ in Barcelona TractionFootnote 71 and by the ILC,Footnote 72 the latter’s Draft Article 19 reads that states should give due consideration to the possibility of exercising diplomatic protection when a significant injury has occurred.Footnote 73 The commentary further specifies that ‘the protection of human beings by means of international law is today one of the principal goals of the international legal order’,Footnote 74 and the commentary to Article 2 specifies that ‘the discretionary right of a State to exercise diplomatic protection should therefore be read with Draft Article 19 which recommends to states that they should exercise that right in appropriate cases’.Footnote 75 Overall, there is a marked tension with respect to state discretion, which has been challenged by human rights claims.
The second feature of diplomatic protection that has been subject to attempts of humanisation is the practice of reparations in the context of state responsibility. Under the laws of state responsibility, the state in breach of an international legal obligation is required to make reparation.Footnote 76 The regime of state responsibility rests on traditional inter-state interactions, with the PCIJ describing it as established ‘immediately as between the two States’.Footnote 77 The relationship between diplomatic protection and state responsibility reinforced the idea that the injury to the individual (as a national) is an injury to the state itself, and thus, the state of nationality is seizing the Court on its own behalf.
However, two elements of reparations have been challenged in the diplomatic protection context: the calculation of damages and the question of the recipient of compensation. Regarding the calculation of damages, there is now an accepted practice in the Court’s jurisprudence and in customary international law of calculating damages on the basis of the injury suffered by the individual.Footnote 78 This again emphasises the central role of the individual in diplomatic protection, contrary to the Mavrommatis fiction.
The second development in favour of the individual in state responsibility is the question of the recipient of the compensation. The traditional rule confirmed by the ICJ in Diallo and the ILC is that the state itself will receive the compensation.Footnote 79 This supports the Mavrommatis fiction. This, however, has been challenged by Article 19(c) of the Draft Articles on Diplomatic Protection, which recommends that states ‘transfer to the injured person any compensation obtained for the injury from the responsible state subject to any reasonable deductions’.Footnote 80 While the ILC admitted that it does not constitute a settled practice, ‘public policy, equity and respect for human rights support the curtailment of the state’s discretion in the disbursement of compensation’.Footnote 81 The heated debates within the ILC during the drafting of the 2006 Draft Articles on Diplomatic Protection, reflecting antagonism between traditional and modern approaches, serves as evidence of the evolving nature of this practice and the erosion of the fiction that held it together.Footnote 82
Compensation to the individual has also been challenged by the Court, who stated in Diallo that ‘the sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo is intended to provide reparation for the latter’s injury’.Footnote 83 Judge Abdulqawi Yusuf has questioned whether this statement was enough, contemplating that the Court could have gone further and explicitly stated that reparations accrue to individuals in case of injury to their rights.Footnote 84 This challenged premise supports once again the natural movement away from the Mavrommatis fiction and the emergent position of the individual in the practice of diplomatic protection.
2.2 Procedural status quo of Individual Participation
The traditional concept of the Mavrommatis fiction examined here concretely manifests itself in the Peace Palace whenever a case of diplomatic protection comes before the Court. Indeed, the state has taken up the case for its subject and thus conducts the case alone before it, as the ‘sole claimant’. There is therefore a clear answer to Mr. Lapradelle’s question from 1920 evoked in the opening of this chapter: the state does not authorise the individual to plead his or her own case at the ICJ. This would contradict the very essence of the Mavrommatis formula: that only the state may be seen. In the words of one commentator, ‘I]l semble que ce soit par son absence, plutôt que par sa présence, que l’individu se distingue’.Footnote 85
Yet, in light of the above analysis (Section 2.1), the procedural role of the state before a court could benefit from re-evaluation. The state is, in reality, mainly acting as an agent or representative for the individual’s case, in response to the latter’s injury and in defence of the latter’s rights.Footnote 86 As one author has put it, ‘[L]’état ne ferait qu’exercer un droit procédural ou dit secondaire, compte tenu du fait qu’aucune violation de ses droits substantiels n’a eu lieu’.Footnote 87 The idea of the state as the individual’s representative in diplomatic protection cases is not new. It has been confirmed in a number of past arbitral awards,Footnote 88 such as William A. Parker (US) v. Mexico (1926),Footnote 89 Affaire Junghans (1939),Footnote 90 and the Grant-Smith Case (the Gin and Angostura) (1952). In the latter case, the arbitral tribunal described the defending government of the injured national as ‘only taking a part in the international dispute as the representative ad litem of its national’.Footnote 91 This seems to best describe what occurs at the Peace Palace in diplomatic protection proceedings. A clear acknowledgement of this would be an evolution from the practice that Mavrommatis sought to establish, where states act in substitution of individuals, the latter seen as mere commodities.Footnote 92
As it stands, however, the procedural participation of the individual has been limited to providing documentary evidence or written testimony in the form of affidavits in the state’s written pleadings. There is therefore an undeniable dichotomy between the legal nature of diplomatic protection and its procedural implications for the state, on the one hand (Section 2.1), and the procedural practice of diplomatic protection, on the other hand.
First, the individual has often collaborated with the protecting state to provide documentary evidence,Footnote 93 such as annexes to one of the written pleadings,Footnote 94 additional documents (produced after the delivery of a pleading but prior to the closure of the written stage of proceedings), supplemental documents (filed at any moment under authorisation of the Court), or new documents (produced after the closure of the written stage, under the special procedure governed by Article 56 of the Rules and Practice Direction IX).
For example, under the PCIJ, Oscar Chinn provided the UK government with instrumental documents to make its case in a dispute named after him.Footnote 95 Before the ICJ, Greek shipowner Nicolas Ambatielos provided the state of Greece with documents in Ambatielos (Greece v. United Kingdom).Footnote 96 The Diallo case indicated that an absence of such documentation by the individual could be detrimental to the outcome of the case. In that case, Guinea was representing Guinean businessman Ahmadou Sadio Diallo against the Democratic Republic of Congo (DRC), accusing the DRC of violating Diallo’s human rights. Yet, Guinea was only compensated with a sum of 95,000 US dollars; 85,000 US dollars for non-material injury and 10,000 US dollars for material injury, in staggering contrast to the astronomical amount that Guinea had originally claimed: over 35 billion US dollars (reduced to 12 million dollars in the compensation phase) and 15 billion ZRZ (Zairean zaire).Footnote 97 The main reason for this is that Guinea was unable to provide any evidence for its claims in the compensation phase, with the Court noting this stood in ‘stark contrast’ to evidence brought by Guinea at an earlier stage of the case.Footnote 98 While many reasons could explain this – such as the change of legal representation in the compensation phase or a lack of resources to collect the necessary evidence – it is possible that Mr. Diallo did not cooperate in providing the necessary documentary evidence beyond what the Court already had. While unsatisfactory as a form of participation, such cooperation is significant and may have led to higher compensation to the Guinean government. This example demonstrates how the individual’s participation can contribute to the Court’s technocratic expertise, thereby upholding its procedural legitimacy (Section I.1.2).
The second form of procedural participation of the individual in diplomatic protection proceedings is providing affidavits as valuable annexes in the protecting state’s memorial (written pleadings). This was seen in the Avena (Mexico v. United States of America) case where Mexico had the burden of proof to prove that individuals were Mexican and not American. It met this, inter alia,Footnote 99 by providing forty-two declarations – in the form of affidavits – confirming that they had not acquired US nationality.Footnote 100 Some of these individuals were still claimed by the US to be US citizens – the Court therefore asked the United States to provide evidence for its claim, but it could not.Footnote 101 The Court stated that the United States could have obtained this information from Mexico, but in the absence of this, it had failed to meet its own burden of proof.Footnote 102 The Court had also been provided with declarations from a number of the Mexican nationals concerned who attested to their never having been informed of their rights under Article 36(1)(b) of the VCCR.Footnote 103 Avena provides us with an example in which the individual played a strong indirect role in the litigation. To borrow from one commentator, ‘As reflected in Mexico’s inclusion in its submissions to the Court in the Avena case of information collected from the affected individuals, there are concrete possibilities to involve the individual rights-holders in the proceedings of the Court’.Footnote 104
To conclude this section, the aforementioned cases illustrate the modest procedural prerogatives of injured individuals in the practice of diplomatic protection cases: they do no more than to provide documentary evidence or affidavits where required. This must be considered against the backdrop of the development of diplomatic protection in the Court’s jurisprudence. There appears to be a disproportionate contrast between diplomatic protection in theory and in practice. Diplomatic protection in theory (Section 2.1), placing the individual at the centre of the practice, and diplomatic protection in practice (Section 2.2), where the individual is virtually excluded from a case that is essentially his or her own. Is it possible to bridge the gap?
2.3 ‘Bridging the Gap’: Means to Procedurally Integrate the Injured Individual in Diplomatic Protection Proceedings
The final section of this chapter is dedicated to a discussion on how the individual may be further procedurally integrated in diplomatic protection cases at the Court. When Mr. de Lapradelle advocated that individuals wished to take part themselves in the proceedings,Footnote 105 which form could he have envisaged this participation taking?
The existence of an individual’s substantive right has not always equated to a procedural prerogative to defend that right as a party in the international legal system.Footnote 106 It was also established in Chapter 1 that locus standi of the individual before the Court was not a reasonable option. Nonetheless, two conceivable solutions within the constraints of the Statute and the Rules of the Court come to mind.
The first is the government protecting the concerned individual to allow him or her to make a statement as part of the government’s delegation during its speaking time in oral proceedings. This was excellently executed in the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 advisory proceedings of September 2018. While these were advisory proceedings (see Chapter 3), this measure may also be carried out in contentious proceedings, including (but not limited to) diplomatic protection cases. The Chagossians, whose rights to self-determination were at the heart of the Chagos advisory opinion, not only contributed to the written pleadings of the government of MauritiusFootnote 107 but were also physically present at the Peace Palace and participated in the oral pleadings within the speaking time of the delegation of Mauritius. According to Mauritius, ‘We think it is appropriate that the Court should hear the voice of the Chagossians directly’.Footnote 108 A group of Chagossians thus attended the oral hearings as representatives of the Chagossian community.Footnote 109 One of them, Ms. Marie Liseby Elysé, made a statement during the speaking time of the government of Mauritius via video.Footnote 110 One of the counsels specified that ‘[t]he words of Madame Elysé, who sits in this Courtroom, are not offered as testimonial evidence, but simply as a member of the delegation of Mauritius – if you like – a statement of impact, what the continuation of colonialism really means for real people’.Footnote 111 The same practice was exercised in the reparation phase of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), where a video testimony from numerous victims of atrocities committed by the Ugandan army was displayed.Footnote 112
Another solution within the constraints of the Statute and the Rules of the Court is the participation of the injured individual in oral proceedings as a witness. The Diallo case indicated that hearing directly from the witness may be valuable to the case – a report of Mr. Diallo’s private hearing in October 2008 in the presence of Mr. Boubacar Télimélé Sylla and Mr. Aboubacar Camara was annexed to the Reply of the Republic of Guinea of 19 November 2008.Footnote 113 The report of his hearing was referred to in Guinea’s 2008 Reply 12 times.Footnote 114 In its compensation judgment, the Court references a statement made by Mr. Diallo during this hearing.Footnote 115
In certain diplomatic protection cases, the individual’s participation would be impossible due to death (seen, for example, in Vienna Convention on Consular Relations and LaGrand), or challenging due to the individual’s status on death row (seen in Avena)Footnote 116 or detention (seen in Tehran HostagesFootnote 117 or JadhavFootnote 118). While playing a video in oral hearings might circumvent the latter challenges, the ICJ denied permission to Pakistan to play a confessional video of Kulbhushan Sudhir Jadhav during the oral hearings in the provisional measures phase of Jadhav (India v. Pakistan).Footnote 119 However, there may still be added value to an individual’s oral testimony in terms of democratic participation and/or technocratic expertise.
A key example of such added value can be seen in Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden). Although not formally brought to the Court under the header of diplomatic protection, the Netherlands sued Sweden for allegedly violating the 1902 Convention on the guardianship of infants by placing a Dutch child living in Sweden under a Swedish regime of protecting upbringing. Despite the Court’s warning that it would not address “the proper appreciation of the grounds on which the challenged decisions are based”,Footnote 120 the child’s testimony could have provided insight into whether her treatment violated the Convention. Leading ICJ scholar Shabtai Rosenne opines that nothing in the pleadings indicated that the child was incapable of participating and stressed the importance of her preferences and welfare being considered in such a case.Footnote 121 In other words, standards of democracy demanded that the child partake in proceedings.
Other similar examples formally brought to the Court under the header of diplomatic protection can also be identified: Nottebohm (Liechtenstein v. Guatemala), Vienna Convention on Consular Relations (Paraguay v. United States of America), and Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).
The first diplomatic protection case in which the participation of the injured individual as a witness would have been valuable was the Nottebohm case. Friedrich Nottebohm, a German national, was born in Germany in 1881 and moved to Guatemala in 1905, at the age of 24, where he resided and set up a business. In 1939, at the age of 58, he applied for naturalisation in Liechtenstein, where he had gone a few times to visit his brother who resided there. After having received Liechtenstein nationality in 1940, he went back to Guatemala to continue business until he was expelled as a result of war measures in 1943, at the age of 62. In 1946, he moved to Liechtenstein, and in 1951, he filed a claim at the ICJ against Guatemala through the government of Liechtenstein. One of Guatemala’s two preliminary objections related to Friedrich Nottebohm’s nationality: could it be relied upon to justify diplomatic protection before the Court? The Court defined nationality as ‘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. (…) The individual upon whom nationality is conferred is in fact more closely connected with the population of the state conferring nationality than with that of any other state’.Footnote 122 It ultimately concluded that this was not the case between Mr. Nottebohm and Liechtenstein and therefore judged Liechtenstein’s claim as inadmissible.Footnote 123
The difficulty comes with the assumptions made about the motives behind Mr. Nottebohm’s decision to acquire Liechtensteinian nationality. The legal reasoning in this judgment is based on psychological motives that the Court did not objectively prove in at least two instances. First, the Court stated that ‘there is nothing to indicate that the application for naturalisation then made by Nottebohm was motivated by any desire to dissociate himself from the Government of his country [Germany]’.Footnote 124 Judge John Read in his dissenting opinion disagrees, ‘I am unable to agree that there is nothing to indicate that Mr. Nottebohm’s naturalisation was motivated by a desire to break his ties with Germany. There are three facts which prove that he was determined to break his ties with Germany. The first is the fact of his application for naturalisation, the second is the taking of his oath of allegiance to Liechtenstein, and the third is his obtaining a certificate of naturalisation and a Liechtenstein passport’.Footnote 125 This is a motive that is difficult to assert without further inquiry to Mr. Nottebohm himself.
A second instance where Mr. Nottebohm’s psychological motives were not objectively proven is where the Court assumed that he had no intention of residing in Liechtenstein. This was based on the fact that he moved back to Guatemala after having been naturalised in Liechtenstein and only left Guatemala because he was expelled. Although at face value, one may rapidly conclude that he had no intention to live in Liechtenstein, this is difficult to assert with confidence without inquiring the person in question. In line with this reasoning, Judge Read states, ‘To begin with, Mr. Nottebohm was 58 years of age at the time-or within two years of the normal retirement age in the type of business activity in which he was engaged. The evidence shows that he was actually contemplating retirement. In October 1939 he was largely occupied with plans to save the business, but I find it hard to believe that he was not also thinking in terms of retirement and that Vaduz was in his mind’.Footnote 126 Judge Read also provides another reason as to why Mr. Nottebohm might have moved back to Guatemala: to clear his name and confront the multiple lawsuits open against him.Footnote 127 Again, these assumptions are difficult to sustain without interrogating Mr. Nottebohm.
I find myself in agreement with the dissenting opinions arguing that the Court should have stuck to an objective approach laid down by international law, as the subjective elements are difficult to prove without questioning the individual in focus. Judge ad hoc Paul Guggenheim, for instance, dissented that, ‘In order to judge as to the bond between the State and its national, that is to say, in order to ascertain whether this bond is real and effective and not merely fictitious, international law only has regard to the external elements of legal facts to which it attaches certain consequences, without concerning itself with the mental attitude of the legal person responsible for a juridical act such as the act of naturalisation, and without considering the motives (which it is very difficult to determine), which have led the individual to apply for naturalisation’.Footnote 128 Judge Read made the same comment in his dissenting opinion.Footnote 129 Judge ad hoc Guggenheim added that it was sought to substitute legal considerations with ‘subjective considerations such as the “genuineness of the application”, “loyalty to the new State”, “creation of a centre of economic interests in the new State”, “the intention to become integrated in the national community”; or, again, rules (…) which are in no way in accordance with present international practice, or vague principles (…) which would open the door to arbitrary decisions’.Footnote 130
Ideally, however, Mr. Nottebohm’s motives could have been more credibly clarified with his participation in oral proceedings in the form of a witness, questioned by the judges and counsel. This would have demonstrated the Court’s technocratic expertise – its specialised understanding of the complex facts at hand and its efforts to address them carefully. The impact would have enhanced the Court’s procedural legitimacy in this instance. Rosenne supported this view, arguing that ‘[t]his case required some – indeed considerable – investigation not merely of the actions of the individual concerned, but more significantly of his motives, that is of psychological factors to necessarily present in the record…’Footnote 131 There are indications that this may have indeed occured: although this is not evidenced by archives, the Court mentioned that ‘other members of his family have asserted Nottebohm’s desire to spend his old age in Guatemala’,Footnote 132 and Rosenne observed that ‘the ICJ accurately evaluated those actions and motives so that no practical injustice issues from the fact that in this case the individual was not able to present himself before the Court’.Footnote 133
The second case in which the participation of the relevant individual as a witness would have been valuable is Vienna Convention on Consular Relations (Paraguay v. United States of America). In a separate document that Paraguay filed along with its Memorial on the merits, entitled ‘Conditional request of Paraguay for an order Conclusively established facts’ (9 October 1998), Paraguay argued that the United States’s disregard for the Court’s provisional measures order cost Paraguay its ‘principal source of evidence (…) Mr. Breard himself’, causing it to suffer ‘evidentiary prejudice’.Footnote 134 This was reiterated in Paraguay’s Memorial as well.Footnote 135 Through this ‘Conditional request’, Paraguay appealed to the Court to declare that any disputed issues of fact that are material to Paraguay’s claims as to which Mr. Breard’s testimony would have been relevant, be established in Paraguay’s favour.Footnote 136 More significantly, Paraguay claimed reparation from the United States, requesting the Court to issue an order protecting Paraguay from evidentiary prejudice suffered from the absence of Mr. Breard’s testimony.Footnote 137 As the proceedings were discontinued, the Court was not able to act on this request. However, it demonstrates the importance of the injured individual’s participation and testimony in cases that directly concern him or her. Beard’s participation would have allowed Paraguay to provide more accurate information to better address the legal matters under consideration and thereby evidence the Court’s legitimacy through its technocratic expertise.
The third diplomatic protection case whereby the injured individual’s participation in proceedings as a witness would have been desirable is the Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) case. As aforementioned (Section 2.1.3), very little compensation was received in the compensation phase due to a lack of evidence concerning the material injury incurred by the victim. Although the Republic of Guinea advocated that ‘Mr. Diallo suffered moral and mental harm, including emotional pain, suffering and shock, as well as the loss of his position in society and injury to his reputation as a result of his arrests, detentions and expulsion by the DRC’,Footnote 138 the Court noted that no evidence for this had been provided by the Applicant.Footnote 139 It therefore resorted to ‘equitable considerations’ to make its decision on Mr. Diallo’s non-material injury, without the need for proof. Many human rights courts take this approach (as many forms of non-pecuniary damage are, by their nature, not amenable to proof).Footnote 140 Therefore, Mr. Diallo’s testimony would not have impacted the Court’s determination of his non-material injury. However, in the merits phase, testimony from Mr. Diallo under the procedural guise of a witness may have been useful in the ascertainment of certain facts with regard to the violations of his human rights. Greater accuracy would have underscored the Court’s technocratic expertise in this respect and, therefore, the procedural legitimacy in this dispute. While Rosenne suggested that in some instances, the presence of a concerned individual may be redundant,Footnote 141 an appearance in person would have allowed him to clarify certain potentially abstruse elements in the written pleadings, allowed him to provide his version of events, allowed counsel to cross-examine him for truthfulness, and allowed for judges to ask him questions. Furthermore, the idea of a case surrounding an individual to be decided in his or her absence is somewhat disquieting, harming democratic standards of procedural legitimacy supported by social idealism.
2.4 Conclusion
Professor Rosenne has accurately written as follows:
In [a diplomatic protection case] the individual concerned, whatever may have been his actions, his conceptions, his expectations, or his intentions in regard to the transaction under discussion apparently is not granted any opportunity to make known to the Court, in his own way, his own views on the questions of fact and the questions of law involved. In all of these respects, it is entirely a matter for the government which has espoused his claim to decide whether or not, or to what extent, it will include its own presentation of its own case (which may or may not be the same as that of the individual) argument presented to it by the individual. The government is the dominus litis, and in most cases in fact also.Footnote 142
Diplomatic protection cases are prima facie inter-state cases like any other at the World Court. But a closer look demonstrates that they are, in fact, disguised disputes between an individual and a foreign state. Indeed, the individual is no longer invisible on the international plane – they have recognised rights and injuries and must fulfil certain conditions in order for the Court to take up the case, through the façade of their government. This reality is coupled with an increasing humanisation of the practice of diplomatic protection in state practice and doctrine and at the Court itself. Scholarship has gone as far as saying that the Mavrommatis fiction has not only been undermined as a result of these developments but has also ceased to exist all together.Footnote 143 However, this state of affairs strongly contrasts with the absence of procedural prerogatives granted to the injured individual, who solely cooperates with the state to provide documentary evidence or, at the most, a written testimony in the form of an affidavit, attached to the government’s written pleadings.
This contrast compromises the Court’s procedural legitimacy in at least two ways. First, standards of democracy used to measure legitimacy are not met where injured individuals are absent in proceedings where they are directly impacted. Second, technocratic expertise is compromised where the individual’s enhanced participation may have allowed for more evidence that could have facilitated the Court’s tasks.
This dichotomic gap could be bridged by state litigants making space for injured individuals to make statements in their delegation or as witnesses, where feasible and relevant. Indeed, governments should consider the importance of inclusion in an increasingly interconnected international legal order with a number of actors beyond the state.
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