BARCELONA TRACTION CASE (BELGIUM V. SPAIN)

BARCELONA TRACTION CASE (BELGIUM V. SPAIN)

 

FACTS

The claim is presented by Belgian nationals (shareholders in the Barcelona Traction - company incorporated under Canadian laws) for reparation for damage allegedly caused to these persons by the conduct, said to be contrary to international law, of various organs of the Spanish State towards that company and various other companies in the same group.

 

ISSUE

Whether Belgium has a right to exercise diplomatic protection of Belgian shareholders in a company which is a juristic entity incorporated in Canada, the measures complained of having been taken in relation not to any Belgian national but to the company itself?

HELD

• When a State admits into its territory foreign investments or foreign nationals, it is bound to extend to them the protection of the law and assumes obligations which are neither absolute nor unqualified.
• Distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection.
• In view of the importance of the rights involved, all States can be held to have a legal interest in their protection, they are obligations erga omnes.
• Erga omnes - Some obligations in contemporary international law arise towards the international community as a whole these are obligations inasmuch as all states have a legal interest in the protection of the rights.
• The crystallisation of human rights thereby spawns parallel State rights. These parallel State rights must not be confused with the original human rights.
• Jus cogens refers to the legal status that certain international crimes reach, and obligations erga omnes pertains to the legal implications arising out of a certain crime’s characterisation as jus cogens - The implications of jus cogens are those of a duty and not of optional rights; otherwise jus cogens would not constitute a peremptory norm of international law.

• The threshold question is whether such a jus cogens status places obligations erga omnes upon states or merely gives them certain rights to proceed against perpetrators of such crimes.
• How to determine a preemptory norm?
• International pronouncements - recognition that these crimes are deemed part of general customary law;
• language in preambles or other provisions of treaties - indicates these crimes’ higher status in international law;
• large number of states which have ratified treaties related to these crimes; and
• the ad hoc international investigations and prosecutions of perpetrators of these crimes.
• certain crimes affect the interests of the world community as a whole because they threaten the peace and security of humankind and because they shock the conscience of humanity. If both elements are present in a given crime, it can be concluded that it is part of jus cogens.
• The erga omnes and jus cogens concepts are often presented as two sides of the same coin - The term erga omnes means “flowing to all,” and so obligations deriving from jus cogens are presumably erga omnes.
• Obligations the performance of which is the subject of diplomatic protection are not of the same category (jus cogens).
• Two conditions:The first is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach.