the State has an absolute right to dispose of payment as it sees fit; it possess complete control overfunds paid. The general theory to provide reparations for injury to private claimant but the State is notrequired to hand over reparations received to private claimant – that is a matter for Municipal Law.32 | P a g e
Candace LopezRustomjee v The Queen– R was injured in China and UK received compensation for the injuries. R wasnot compensated, so he brought a claim to courts. It was held that any omission on the part of thecrown to distribute the compensation would be omissions of the sovereign for which she cannot be heldresponsible. However, under International Law and domestic practice the state should distribute themoney or a portion thereof to the person injured. The Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania)– In taking up a case of one of its nationals,by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in realityasserting its own right to ensure in the person of its nationals respect for the rules of International Law However, a State cannot bring a claim on behalf of nationals of other states in the absence of anagreement. This is because it is the bond of nationality between the State and individual alone confersupon the State the right of diplomatic protection – it is as part of the function of diplomatic protectionthat the right to take up a claim and to ensure respect for rules of IL must be envisaged. Where injurywas done to a national of some other state, no claim to which such injury may give rise falls within thescope of diplomatic protection which a state is entitled to espouse.Barcelona Traction Case– Should natural or legal persons on whose behalf State is acting consider thattheir rights are not adequately protected, they have no remedy in International Law but can resort toMunicipal Law. The power of a state to bring a claim on behalf of nationals remains a discretionarypower, the exercise of which is determined by political considerations unrelated to the case. Since thestate‘s claim is not identical with that of the individual or corporate person whose cause is espoused, theState enjoys complete freedom of action. CAPACITY TO BRING A CLAIM: THE NATIONALITY LINKHague Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930) Article 1 Each State determines under its own law, who are its nationals. This law shall be recognised by otherStates in so far as it is consistent with international conventions, international custom, and the principlesof law generally recognized with regard to nationality... Article 2 Any question as to whether a person possesses the nationality of a particular State shall be determinedin accordance with the law of that State.