Suits brought by a state on behalf of its nationals

It is a rule of customary international law that a state which has caused injury to an individual, who is a national of another state, is liable to make adequate reparation, at the suit of the individual's state of nationality, for acting towards the individual in a manner incompatible with certain international obligations which the offending state is bound to observe.Footnote ¹⁴ The customary right of states to bring a claim before an international court on behalf of their nationals (the right of diplomatic protection) was, until recently, the only means by which a wrong done to an alien by a state could be redressed by an international court. This was because international law did not traditionally recognize individuals as its subjects. In consequence, a legal wrong done to an alien was fictionally a wrong done to the alien's state of nationality. By that fictional supposition, when a state exercises the right to diplomatic protection, the state is not holding a brief for the individual who is the victim of the wrong. Such a state is actually seen to be litigating a right that directly appertains to it. In other words, “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 ¹⁵ For, as the Permanent Court of International Justice (PCIJ) consistently declared: “by taking up the claim of one of its subjects … a State is in reality asserting its own rights”.Footnote ¹⁶

As a result, if a natural or legal person on whose behalf the state is acting considered that their rights were not adequately protected, they had no remedy under traditional international law.Footnote ¹⁷ The only option open to that individual, under traditional international law, was to resort to municipal law with a view to furthering their cause or obtaining redress.Footnote ¹⁸ It is to the municipal law of the individual's nationality that the individual is expected to have recourse to demand that their state should adequately protect their rights from infringement by a foreign state; this is only possible where municipal law confers upon its national the right to make such a demand.Footnote ¹⁹ Hence the rule governing diplomatic protection rests on the suppositions that: the defendant state has broken an obligation towards the state whose national has been injured; and that only the party to whom an international obligation is due can bring a claim in respect of its breach.Footnote ²⁰ That party is the state of nationality of the victim.

The effective link between the litigating state and the injured individual is the bond of nationality or the “genuine connection”Footnote ²¹ between that state and the individual. For, “in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection”.Footnote ²²

The rule of diplomatic protection need not be permitted by a treaty for a state to exercise it; it is a right which inures in every sovereign state under customary international law, on the basis of sovereignty. The right for which the protection is exercised must however involve the breach of an international obligation arising out of a treaty or from general international law.Footnote ²³ Irrespective of the basis of the claim, the essential precondition to the exercise of the right to diplomatic protection must first be fulfilled: it is essential that domestic remedies be fulfilled before the jurisdiction of an international court can properly be invoked. In stating this rule, the PCIJ said: “[i]t 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 [the subjects] have been unable to obtain satisfaction through the ordinary channels.”Footnote ²⁴

The exhaustion of other means of redress open to the alien is thus an essential condition to the exercise of diplomatic protection by the alien's state of nationality.

This precondition cannot be excluded lightly. This is because it is an inexcusable corollary of the right to diplomatic protection, which may carry the aura of jus cogens [a peremptory norm] when exercised for the protection of those rights which give rise to obligations erga omnes [arising to all]. In the case concerning the Barcelona Traction, Light and Power Company Ltd, the ICJ mentioned “the principles and rules concerning the basic rights of the Human person”,Footnote ²⁵ as one of the sources from which an erga omnes obligation may arise. These basic rights are based on “elementary considerations of humanity”Footnote ²⁶ and are for the benefit of the international community as a whole. To that extent, they are jus cogens rules of international law from which derogation is not permitted. Furthermore, the rule of exhaustion of local remedies attaches to the fundamental right of territorial jurisdiction; it is an affirmation of the territorial jurisdiction of the respondent state.

The rule is an implicit jurisdictional requirement for the seizing by an international court for the protection of an individual at the suit of the individual's state of nationality. This explains why the rule is an integral part of the ICJ's jurisprudence even in the absence of an express provision incorporating it into the court's statute. In the Interhandel case, the ICJ held:

There is however a distinction between cases based on diplomatic protection and cases based on a direct breach of international law by a state resulting in injury to another state (a state to state claim). The rule of exhaustion of domestic remedies applies only to the former. It does not apply to the latter, because a request by the respondent state that the claimant should exhaust the legal remedies available in the former state would run counter to the principle par in parem non habet imperium, non habet jurisdictionem [an equal has no power or jurisdiction over an equal].Footnote ²⁸

The difficulty however is that the circumstances of certain international claims may blur the distinction by carrying a mixture of diplomatic protection and direct claim. In the case concerning the Aerial Incident of 27 July 1955,Footnote ²⁹ Israel's case before the ICJ was to seek redress, including compensation for its nationals who suffered as a result of the shooting down of an Israeli commercial flight by Bulgarian defence forces. One of the grounds on which Bulgaria challenged the competence of the claim was that the individuals, whose claims were presented by Israel, had not exhausted domestic remedies. The Israeli government argued that the case was one of direct damage rather than diplomatic protection. Unfortunately, the court did not comment on this issue as the case was dismissed on other grounds. Commenting on the case, Theodore Meron noted that:

It is pertinent to note, however, that the respondent state should not be allowed to take advantage of the rule where there is no connection between the claimant and the legal system of the respondent state. Indeed, in the Aerial Incident of 27 July 1955 case,Footnote ³¹ it would have been unjust for the ICJ to uphold Bulgaria's objection based on in-exhaustion of domestic remedies when the facts of the case clearly showed that the victims never had any territorial connection with the Bulgarian legal system, either as visitors, residents or by contract. To uphold Bulgaria's contention that domestic remedies were not exhausted would have destroyed all chances of the claimant redressing the wrong through judicial means.Footnote ³²

The failure of the court to provide answers to the issue in this case was corrected in Elettronica Sicula SpA (ELSI),Footnote ³³ where the court made strenuous pronouncements on the issue. In this case, the United States of America brought a claim under the Treaty of Friendship, Commerce and Navigation of 1948 (FCN Treaty) between Italy and the USA, on behalf of two US corporations, Raytheon and Machlett. The USA asked the court to hold that Italy was in violation of its obligations under the FCN Treaty for engaging in acts and omissions which prevented Raytheon and Machlett from liquidating the assets of their wholly-owned Italian corporation (ELSI), thereby causing the latter's bankruptcy. The USA argued that the local remedies rule should be dispensed with because it was a case of direct injury to the USA. Rejecting this argument, the court held that it was unable to hold that the alleged violation of the FCN Treaty caused the USA a direct injury, “that is both distinct from, and independent of the dispute over the alleged violation in respect of Raytheon and Machlett”.Footnote ³⁴ The court further noted that it was unable to accede to the US argument because the claim on behalf of the companies “coloured” and “pervaded” the US claim.Footnote ³⁵ It follows that, for a state to sustain a case involving a mixture of state claim and diplomatic protection, outside the demand of exhaustion of local remedies, the state claim must predominate and not be dependent on the claim of the diplomatic protection aspect of the case.

The exhaustion rule is not sacrosanct. A respondent state is at liberty to waive it and attack the applicant's case on its merits; however, once a state waives the right in a particular case, she will not be allowed to approbate and reprobate to the prejudice of the applicant. For “[t]here is nothing to prevent States from waiving the benefit of the rule of exhaustion of domestic remedies, the essential aim of which is to protect their national legal order … If there is such a waiver in the course of proceedings … it can scarcely be imagined that the Government concerned is entitled to withdraw the waiver at will after the case has been referred to the Court.”Footnote ³⁶

Suits brought by an international organization on behalf of its staff

The capacity of the United Nations, and by analogy other international organizations, to espouse an individual's claim before the ICJ was established in the advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations.Footnote ³⁷ It is important to state at the outset that, though the opinion in this case was specifically addressed to the United Nations, it appears that the capacity of international organizations to bring international claims for the protection of individuals who are in their service is now generally tenable. Support for this view could be garnered from the Barcelona Traction, Light and Power Company Ltd, where the court indicated that the capacity extends to other international organizations. In this case, the court admitted that a person could be in possession of two bases of protection: protection by his state of nationality and protection by an international organization.Footnote ³⁸

In Reparation for Injuries Suffered in the Service of the United Nations, the court was requested to answer whether: “[i]n the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a state, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible … government with a view to obtaining the reparation due in respect of the damage caused … to the victim or to persons entitled through him?”Footnote ³⁹

Answering this question in the affirmative, the court declared that the object and purpose of the United Nations entitles it to bring a claim against a defendant state on behalf of its officials, who have been injured by the conduct of the defendant state in the course of performing their functions towards the organization.

Though it may appear on the face of it that the capacity of an international organization to espouse the claim of an individual is analogous to that of a state, the court was careful to make it clear that the capacity of an international organization does not proceed on the same footing as that of states. The differences lie in two important conceptions: first that an international organization is entitled to bring an international claim, not on the basis of sovereignty or on the basis of a treaty specifically authorizing it, but on the basis of its purpose and functions; secondly, that the “genuine link” between the organization and the injured individual is not the “bond of nationality” but the “contractual link” between that individual and the international organization.Footnote ⁴⁰ According to the court:

There are however some similarities. The similarities are in the fact that the right of both entities to espouse the claim of an individual need not be directly conferred by treaty. The right is exercisable upon the breach of an obligation imposed upon the defendant state under treaty or general international law. Furthermore, as with states, the consequence of the breach committed by the defendant state is not directly suffered by the organization but by the individual whose claim is being espoused.

Furthermore, the right of an international organization to espouse the claim of its employee, has a major link with the right of states to espouse the claims of their nationals. The link lies at the heart of diplomatic protection: the defendant state must have breached an international obligation resulting in damage to the individual under the protection of the plaintiff state or international organization. The right of international organizations in this regard flows from no other legal source than the general principles of customary international law from which flows the right of states to exercise diplomatic protection.

The corollary of this is that the rule of exhaustion of domestic remedies is applicable to claims brought by an international organization in the same manner and to the same extent that it is applicable to claims brought by states. This is in view of the point already made that the rule of exhaustion inexcusably follows the right to diplomatic protection.

Individual claims

Following the Panevezys-Saldutiskis Railway caseFootnote ⁴² and Barcelona Traction, Light and Power Company Ltd,Footnote ⁴³ it is clear that the right of diplomatic protection arose because the individual did not have the capacity to bring an international claim before international courts or tribunals for the purpose of redressing a wrong done to them by another state.Footnote ⁴⁴ The impossibility of individual claims before an international court is the necessary corollary of the archaic view that international law cannot confer a right directly on an individual; international law rights were only conferrable on states even when intended for the benefit of individuals.

In contemporary international law, states can, as is now often the case, confer treaty rights directly on individuals. This modern practice does not obliterate the traditional approach. The former logically exists as an exception to the latter. Here lies the major difference between claims brought on behalf of an individual by the individual's state of nationality or by an international organization, on the one hand, and cases brought directly before an international court by the individual, on the other. The difference is that, unlike in diplomatic protection cases, an individual's capacity to bring a direct international claim does not arise from customary law. The capacity must be specifically conferred by a treaty to which the respondent state is a party. According to the PCIJ in the Jurisdiction of the Courts of Danzig case:

In this case, the PCIJ was concerned with whether individuals can directly enforce, in a domestic court, rights conferred on them by treaties. The importance of the case is its emphasis upon the creation of individual rights and obligations by an international agreement. Thus an international instrument may confer rights on the individual without giving the individual the capacity to enforce the right before an international court or tribunal. In the absence of an express stipulation granting capacity to the individual, the individual's capacity to bring international claims cannot be presumed. For such instruments, the individual can only rely on municipal law enforcement, if any, or wait for their state of nationality to espouse their cause.

In view of the increasing premium international law attaches to the protection of human rights from infringement even by the individual's own state of nationality, the practice of conferring upon the individual not only international rights, but also the capacity to enforce those rights before the relevant international court, has become commonplace. This practice is conducive to the tenor of modern human rights treaties, which recognizes the capacity of the individual to seek redress for a breach of their rights, not on the basis of nationality, but on the basis of the inviolability of the human person and the universality of human rights. This allows the individual to bring an international claim, even against their own state of nationality, for human rights abuses.

The last point brings us into the realm of another fundamental difference between a direct individual claim and a diplomatic protection claim. The right of the individual to bring a direct international claim is available for the vindication of breaches committed by the individual's state of nationality and every other state adhering to the jurisdiction of a particular international court at the suit of the individual. However, diplomatic protection cannot be exercised for breaches committed by an individual's own state of nationality. The latter has a wider coverage than the former, as it is exercisable erga omnes.

Although the legal basis for direct legal action by an individual and the legal basis for an action espoused on the individual's behalf are different, they are both governed by the same consideration of exhaustion of domestic remedies. The respondent state must be given the opportunity to redress the wrong through its municipal law before the jurisdiction of an international court can properly be seized.Footnote ⁴⁶ Whether the claim is brought directly by an individual or on the individual's behalf, an international court seeking to satisfy itself on the exhaustion of domestic remedies is guided by the same principles. This is expectedly so because, in the municipal sphere, it is the individual who is the major actor; just as in cases of direct claims by individuals, it is the individual, not the state, who must exhaust available domestic remedies. This necessarily follows from the fact that a diplomatic claim begins as a claim between the individual and the respondent state. The individual's state of nationality only comes into the picture when it becomes necessary to resort to diplomatic protection. Highlighting this point in Mavrommatis, the PCIJ declared, “it is true that the dispute was at first between a private person and a State - ie 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 States.”Footnote ⁴⁷ To that extent the case law of international courts on exhaustion of domestic remedies in diplomatic protection claims is applicable to direct claims by individuals.

The requirement of exhaustion of domestic remedies has appeared twice in the European Convention. The first was article 26 of the principal convention; the second is article 35 of Protocol 11, amending the principal convention. Remarkably, the rule appeared as a condition of admissibility of individual petitions in the two instances that individuals have been granted direct access to the enforcement mechanisms of the European Convention. Article 26, relating to the admissibility of petitions brought by individuals before the European Commission on Human Rights, provides: “[t]he Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.”Footnote ⁴⁸ Article 35 of Protocol 11 provides: “[t]he [ECHR] may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rule of international law.”

Under article 50 of the African Charter, “[t]he Commission can only deal with matters submitted to it after making sure that all domestic remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.”Footnote ⁴⁹ Similarly article 46 of the American Convention on Human Rights (American Convention)Footnote ⁵⁰ provides that individual petitions shall be subject to the requirement “that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law”.Footnote ⁵¹

It is quite remarkable that article 35 of the European Convention and article 46 of the American Convention refer to the exhaustion rule as “a generally recognised principle of international law”. The general acceptance of the rule of exhaustion as an important principle of customary international law has also been affirmed by the ICJ.Footnote ⁵² It is on this premise difficult to accept the contention that, “with few exceptions, earlier international experiments granting procedural status to individuals did not apply the rule at all or applied it with a marked and varying degree of flexibility”.Footnote ⁵³

This view, with respect, is unpersuasive. This is more so as it did not cite instances of such earlier international experiments. The procedural rights of individuals before international courts in the form in which they exist today are still relatively new. It can fairly and rightly be asserted that they took root in the European Convention which, as stated above, recognizes the exhaustion rule as a condition of admissibility. Admittedly, there had been instances where the rule was excluded in arbitration proceedings, where individuals were allowed to claim.Footnote ⁵⁴ But those arbitration agreements differ, in many respects, from multilateral treaties upholding the procedural rights of individuals before contemporary international courts. They differ in both jurisdiction and composition: arbitration tribunals were mostly ad hoc; the arbitrators were agreed upon in advance by the parties; and the matters to be submitted to the arbitrators were agreed. Therefore, the prior non-application of the rule by certain arbitral tribunals does not justify the above assertion.

That said, it must be noted, as pointed out earlier, that the rule is not absolute in all cases, as the respondent state is at liberty to waive it and challenge the international claim on its merits. In the matter of Viviana Gallardo et al. Government of Costa Rica,Footnote ⁵⁵ the Inter-American Court of Human Rights held that the rule requiring the exhaustion of domestic remedies is designed for the benefit of states and is thus a defence to international procedures, and that it can be waived, even tacitly, by the respondent state.

However where, as is usually the case, a state asserts the rule, the onus is on the state to prove that the applicant did not exhaust domestic remedies before bringing the international claim. It must also show that the available remedies are effective to remedying the wrong which is asserted.Footnote ⁵⁶ On the other hand, the onus is on the applicant to prove that domestic remedies were indeed exhausted, or to adduce evidence as to why they had not been exhausted,Footnote ⁵⁷ where it is alleged that exceptional circumstances militated against exhaustion. In Ahmadou Sadio Diallo,Footnote ⁵⁸ Guinea brought a case before the ICJ on behalf of its citizen, Ahmadou Sadio Diallo, who was alleged, inter alia, to have been unlawfully arrested, detained and expelled from the DRC. The DRC contended that Guinea's case was inadmissible for the failure of Ahmadou Sadio Diallo to exhaust domestic remedies. Guinea, on its part, did not dispute the domestic remedies rule but was concerned with whether the DRC's legal system actually offered domestic remedies which Mr Diallo should have exhausted before his cause could be espoused by Guinea.Footnote ⁵⁹ Noting that it was for the respondent to convince the court that there were effective remedies in its domestic legal system that were not exhausted, the court declared: “[i]n the present case, Guinea must establish that Mr Diallo exhausted any available local remedies or, if not must show that exceptional circumstances justified the fact that he did not do so; it is, on the other hand, for DRC to prove that there were available and effective remedies in its domestic legal system against the decision to remove Mr Diallo from the territory and that he did not exhaust them.”Footnote ⁶⁰

The court further observed that, even if this was a case of expulsion and not refusal of entry, as the DRC maintained, the DRC also failed to show that means of redress against expulsion decisions were available under its domestic law. The court dismissed the DRC's objection on the ground that it failed to prove the existence in its domestic legal system of the availability of effective remedies allowing Mr Diallo to challenge his expulsion.

This is also the approach of the ECHR. In Selmouni v France Footnote ⁶¹ and Hartman v Czech Republic,Footnote ⁶² the court held that it is incumbent on the government claiming non-exhaustion to convince the court that: the remedies were effective and available in theory and in practice at the relevant time; and it was accessible and capable of providing redress in respect of the applicant's complaints as well as offering reasonable prospects of success.

Contrary, however, to the view that the onus of proving effective remedies is on the respondent state, Judge Lauterpacht reasoned, in his separate opinion in Certain Norwegian Loans, that it was for the applicant to prove ineffective remedies. According to him:

Judge Lauterpacht's view appears to find support in article 46(2) of the American Convention, which excuses non-exhaustion where: the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or there has been unwarranted delay in rendering a final judgment under those remedies.Footnote ⁶⁴ The only reasonable construction the wording of the article suggests is that it is the applicant who will have to prove the existence of any of the circumstances, including the ineffectiveness of remedies. Of course, it cannot be expected that the state would make such adverse admissions.

Therefore, there seems to be some confusion as to whether the proof required is that of the effectiveness or ineffectiveness of existing remedies. The apparent conflict could be resolved by seeing the burden as a constantly shifting one: it is for the respondent to prove that existing remedies are effective and for the applicant to prove that they are not effective. This approach is firmly established in the ECHR. On this score, Selmouni v France Footnote ⁶⁵ and Hartman v Czech Republic Footnote ⁶⁶ can be relied on once again. In these cases, the court held that, once the respondent has satisfied the burden of proving effective remedies, it falls to the applicant to establish that the remedy advanced by the government has in fact been exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances.

It is certain however that, once an international court comes to the conclusion that the existing remedies are ineffective, whether through the failure of the respondent to prove effectiveness or through the successful proof of ineffectiveness by the applicant, the court would disregard the respondent's arguments based on in-exhaustion of domestic remedies.

According to Judge Lauterpacht, “the requirement of exhaustion of local remedies is not a purely technical or rigid rule. It is a rule which international tribunals have applied with a considerable degree of elasticity. In particular, they have refused to act upon it in cases in which there are, in fact, no effective remedies owing to the law of the state concerned or the conditions prevailing in it.”Footnote ⁶⁷

In exercising the burden of proof, it is sufficient for the respondent to prove that: the in-exhausted remedies cannot clearly be said to lack any prospect of success;Footnote ⁶⁸ and the remedies related to the breaches alleged and were available and sufficient.Footnote ⁶⁹ The remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness.Footnote ⁷⁰

The applicant is thus not entitled to argue that a remedy is not effective simply because a domestic decision was not in favour of the individual whose case is being espoused. Even where there was a manifest error of law, what the international court should be concerned about is whether the respondent state has laid down adequate laws and transparent procedures for redressing the claim in an effective manner. Dinah Shelton has observed, and rightly too, that “[t]o be adequate, domestic remedies must be suitable to address the infringement of the right. To be effective, the remedy must be capable of producing the designed result. And as earlier said, the mere fact that the remedy does not produce a favourable result does not alone show that remedies are ineffective.”Footnote ⁷¹

Irrespective of the admission of parties, an international court can take an independent view of the parties' previous dealings in respect of the claim before the court, to come to the conclusion that domestic remedies were not exhausted. An international court can reach this conclusion from the existence of pending cases before a court of the respondent state. In Interhandel, despite the admission of the USA, as respondent, that domestic remedies had been exhausted, the ICJ remarked that it:

It is clear from the general principles of the rule as stated above that the rule has been developed in a balanced manner to protect both the respondent state and the applicant. It allows an international tribunal to decline jurisdiction when the case is flawed due to a failure to exhaust domestic remedies. However, an international court would ignore in-exhaustion when the defence is a ploy to frustrate the applicant's case, particularly where no efficacious domestic remedies actually exist in the respondent state or where there is no connection between the municipal law of the respondent state and the claimant.

In concluding this section, it is important to reiterate that the exhaustion rule is an intrinsic part of international adjudications which seek the protection of individuals' rights. It is a usual treaty requirement, a rule of customary international law and well established in the case law of international courts. Further, as could be seen above, ECHR case law provides a helpful guide to any enquiry on the application of the exhaustion rule to individuals' direct claims in international courts such as the ECCJ. In the light of the foregoing, this article now considers the ECCJ Supplementary Protocol as well as the court's views on the issue.