On the question of diplomatic protection, the court considered that international law was in continuous evolution and was called upon to recognize institutions of municipal law. Customary international law considers those rules generally accepted by municipal legal systems. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State.
The court established, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which had been the victim of a violation of international law.
In arriving at its decisions in the Barcelona Traction case, the Court also realised that state practise could not be incompatible with jus cogens, because the peremptory norm would not be acknowledged and approved by the international community. Therefore, a customary international law rule must be present before a rule of jus cogens transpires. Additionally, the court also included some human rights provisions as having jus cogens character when it stated:
Such obligations derived, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.
Addressing some of the provisions above, as it relates to the Barcelona Traction case, will illuminate its relevance to jus cogens norm in the protection of International human rights.
Relevance of Case to Jus Cogens norm in Protection of International Human Rights
Jus cogens is a rule in international law that is so fundamental that it binds all states and does not allow any exceptions. A jus cogen rule is important because it protects the jus standi of individuals and restricts various state privileges which can be abused by some States to capitalize on their own interests. For instance:
a. Locus Standi & State Responsibility
It is customary international law that only states could appear before the International Court of Justice in contentious proceedings. However, individuals have the legal obligation and right to pursue relevant domestic courts and treaty organs for redress. A violation of this erga omnes obligation is a violation of the jus cogens character of human rights internationally. Yet, it is the States themselves which allow persons the locus standi to make claims to the international bodies. In the particular circumstances of the present case, where the company's national State was able to act, the Court was not of the opinion that jus standi was conferred on the Belgian Government by considerations of equity. The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. Since no jus standi before the Court had been established, it was not for the Court to pronounce upon any other aspect of the case.
b. Right to Fair Trial, Due Process and the Denial of justice
The right to due process is accepted by the international community as a jus cogens rule. A delay in justice constitutes a denial of justice. It was observed that in the successive written and oral proceedings of the case, the Parties provided abundant case materials and information. The Court recognized that the extraordinary length of the proceedings was due to the very long time-limits requested by the Parties for the preparation of their written pleadings and to their continual requests for an extension of chosen limits. The Court did not refuse those requests, but it remained convinced that it was in the interest of the authority of international justice for cases to be decided without unwarranted delay. It was unfortunate that numerous proceedings were brought in the Spanish courts by various companies or person without success. According to the Spanish Government, 2,736 orders were made in the case and 494 judgments given by lower courts and 37 by higher courts before it was submitted to the International Court of Justice. The right to a fair trial is fundamental to justice in the international community. Discriminatory intention, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process is a breach of customary international standards.
Recent Developments
There is little doubt that the Barcelona Traction case provided a precedent for future court decisions, especially those involving human rights issues. Javaid Rehman asserts that, “a number of the rights contained in the UDHR [Universal Declaration of Human Rights] have become so firmly established in international law that they are now treated as having a jus cogens character.” Most recently, in Mc Elhinney v Ireland, Al-Adsani v United Kingdom and Fogarty v United Kingdom, the European Court of Human Rights held that the application of the doctrine of sovereign immunity effectively preventing legal proceedings against foreign governments did not violate the petitioner’s right under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court stated that States are not entitled to plead immunity where there has been a violation of human rights norms with the character of jus cogens. The Court observed that International law against torture is so fundamental and compelling that it overrides all other principles of international law, including the well established principles of sovereign immunity. It enjoys a higher rank in the international hierarchy and takes precedence over treaty law and even ordinary customary rules. Also, in Castillo Petruzzi v Peru Military Tribunal the ruling by the Inter-American Court of Human Rights that military courts are not competent to try civilians constitutes an important step forward in setting standards for fair trials. Moreover, in Crosby v National Foreign Trade Council, which involved sanctions against a foreign state for human rights violations, the US Supreme Court of Justice ruling is welcomed as it could result in a pruning of the independent powers of the US President in foreign affairs.
Conclusion
Although controversies exists surrounding what constitutes jus cogens, however they do not diminish the fact that certain overriding principles of international law exists and are regarded by the international community as jus cogens, for example, the right to life, the right to a fair trial and freedom from torture. The Barcelona Traction case is relevant to jus cogens norm in protection of international human rights because it safeguards the jus standi of individuals and curtails various state privileges, such as state sovereignty, which may be exploited by some States to maximise their own interests.
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Malcolm N. Shaw (Cambridge University Press LTD, 1997), p.96
Paraphrased from ICJ Rep 1970 4 at<http://www.icj-cij.org/icjwww/idecisions.htm>
Paraphrased from ICJ Rep 1970 4 at<http://www.icj-cij.org/icjwww/idecisions.htm>
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Supreme Court of Justice 120 S. Ct. 2288 see [2000] 94 AMJIL 2288
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