Chapter 9 STATE RESPONSIBILITY FOR INJURIES 81 TO ALIENS: DIPLOMATIC PROTECTION AND INTERNATIONAL CLAIMS Conditions and Procedural Aspects of Citizenship Requirement General Knute E. Malmborg, Assistant Legal Adviser for Management, replied to the question, why various legislative authorities of the State Department, in the area of protection of interests abroad, should be limited to American citizens (e.g., 91 Stat. 419: "emergency medical attention and dietary supplements for U.S. citizens incarcerated"), in a memorandum dated January 24, 1978, reading in part: The reason for this is that the internationally recognized right of the United States to intervene on behalf of persons in whom it has an interest is limited to its citizens or nationals. The United States would be without legal basis to intervene in a foreign country on behalf of persons who are domestically entitled to equal protection of its laws but are not its citizens or nationals. To use broader terminology in these laws could not only arouse mistaken expectations but create a potential conflict between statutory responsibility and international law. While the term "nationals" is broader than "citizens", the additional group covered by the former, under the Immigration and Nationality Act, is only those noncitizens who owe permanent allegiance to the United States. Under section 308 of that Act [8 U.S.C. 1408], the persons who are nationals but not citizens by birth are those born in American Samoa and Swains Island, the children of such persons born outside the United States or those two possessions, and an esoteric category of infants. The one group is sufficiently ill-defined for purposes of recognition by international law, and the other group so small, that use of the term "citizen" instead prevents confusion about who is entitled to statutory forms of protection as a matter of law, yet permits appropriate protection of a general nature to others with a claim to nationality in the exercise of discretion delegated to the Secretary of State in the conduct of foreign relations. Dept. of State File No. P79 0128-0418. The statutory limitation upon entitlement appeared in P.L. 95-86, Title I, "De partment of State Appropriation Act, 1978," Aug. 2, 1977, 91 Stat. 419. Exhaustion of Local Remedies Inapplicability to Direct Infringement of Rights of State In its Arbitral Award of December 9, 1978, in Dispute (Case) Concerning the Air Services Agreement of March 27, 1946, the Arbitral Tribunal Established Pursuant to the Compromis of Arbitration of July 11, 1978, between the United States and France upheld the position of the United States on both issues submitted: (1) the right of the United States-designated air carrier (Pan American World Airways) to change gauge in a third country (the United Kingdom) on its West Coast-Paris service; and (2) the right of the United States under the circumstances in question to undertake certain counter measures. When it had agreed to resort to arbitration with respect to third country change of gauge, the French Government had reserved (in the sixth preambulatory paragraph of the Compromis) its right to argue before the Tribunal that all means of internal recourse must have been exhausted before a state might invoke arbitration under article X of the Air Services Agreement, on the grounds, in its view, that the dispute on the first issue, ante, related to treaty rules designed to protect the rights of private carriers, the air carriers who were to be designated under the Agreement, rather than the rights of the United States. The Tribunal agreed, however, with the United States contention that the United States had suffered a direct injury, apart from the injury suffered by Pan American, and that the rule of exhaustion of local remedies did not apply. The Reply Brief of the United States discussed this issue as follows: (footnotes selectively omitted) IV. EXHAUSTION OF LOCAL REMEDIES The rule of exhaustion of local remedies applies only to cases of espousal by a state of the rights of its injured national. As the French Memorial points out, the rule does not apply to international disputes in which one state complains that its own rights have been infringed by another state. Moreover-and the French Memorial fails even to address this crucial point-the rule of exhaustion of local remedies equally does not apply to international disputes in which one state complains that another state has infringed both its own rights and the rights of its national. In these cases, the state's own rights take precedence. The rights at issue in this case are the subject of an international agreement. That agreement, and those rights, run between the Governments of the French Republic and the United States. In implementation of its rights, the United States has designated a carrier which is also affected by the denial of those rights.51 In such a case, the rights of the United States take precedence and may be maintained despite the fact that the carrier has not exhausted local remedies. Even if, arguendo, the principle of exhaustion of local remedies were otherwise applicable to this case, the rule must be deemed waived by the arbitral provisions of article X of the Agreement, a conclusion which is not vitiated by the French reservation in the Compromis of its right to argue the exhaustion of local remedies. Finally, there is no effective remedy available to Pan Am in France. Where a Minister of the Government of the French Republic has given an official interpretation of a treaty obligation of France, French administrative tribunals do not possess the authority to overrule that interpretation and substitute, with binding force, another interpretation. Consequently, the Tribunal is free to rule on the change of gauge question, and indeed is under an obligation to do so. A. Exhaustion of remedies is not required when the rights of a state and of its nationals are both infringed. It is accepted international law that the rule of the exhaustion of local remedies is applicable only to cases of diplomatic protection of nationals. The rule is "not applicable to cases which are primarily based on a direct breach of international law, causing immediate injury by one state to another ( . . . referred to as cases of 'direct injury')." Meron, The Incidence of the Rule of Exhaustion of Local Remedies, 35 Brit. Y.B. of Int'l L. 83-84 (1959). The distinction between cases of diplomatic protection and cases of direct injury is confirmed by France itself in its Memorial (116). There is no difference between the United States and France on this point. In practice, many cases of direct injury by one state to another state also involve injury to nationals of the latter state. A single set of facts giving rise to international legal proceedings may contain elements both of diplomatic protection and of direct injury. Indeed, as the most searching study directly on this question points out, "most cases of direct injury contain, in a certain degree, also elements of diplomatic protection. It may well be that at the bottom of almost every international claim there is the motivating factor of interests of individuals which need protection." Meron, supra, at 86. Where the case involves one of interpretation or application of a treaty, the rights of the state take precedence, even though the alleged treaty violation may have caused injury to nationals of that state. As Professor Meron has stated, if one state "applies to the International Court of Justice complaining of a breach of certain treaty obligations by [another State] (as shown by its conduct towards the injured alien) and asking principally for a declaratory judgment based on the interpretation of the treaty, this would appear to be a case of direct injury to which the rule of local remedies would not be applicable." Id. Where the primary object "is to obtain from an international tribunal some declaration of the responsibility of the respondent state in international law, or . . . a binding interpretation of a treaty," the case is one of direct injury and exhaustion is not required. Id. at 89. The nonapplicability of the exhaustion rule "governs all complaints by an injured state as to the violation of treaties concluded by it with the territorial state . . . [T]he fundamental question between the two states with respect to violation of the treaty may be posed forthwith." Freeman, The International Responsibility of States for Denial of Justice, 404-405 (1938).52 The discussions in the International Law Commission support these points. As Professor Roberto Ago, the Commission's Special Rapporteur on State Responsibility, replied to Professor Paul Reuter concerning cases "where there was infringement both of the rights of a state and of the rights of foreign private person," "it was generally the infringement of the rights of the state which took precedence." 1 Y.B. Int'l L. Comm'n 265 (1977). Similarly, Professor Quentin Baxter concluded that "the breach of a treaty obligation might immediately give rise to international responsibility vis-à-vis the other state concerned, regardless of whether nationals of that other state had suffered from the breach and whether, if they had pursued any local remedies available, the first state was liable on that count too." Id. at 273. B. In this case rights of the United States are directly infringed and may be the subject of international arbitral recourse without regard to Pan Am's exhaustion of local remedies. France argues that the rights at issue are those of Pan Am rather than the United States; that the United States has no concern other than representation of Pan Am; and that accordingly the rule of exhaustion of local remedies applies. The Agreement and the facts of the case do not support these contentions. 1. The Agreement. This case arises under an Agreement between the Governments of the United States and the French Republic. It provides, in article I, that: |