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Ben Juratowitch
In Barcelona Traction and in Diallo, the International Court of Justice relied on rules of domestic law in two ways. First, it relied on the separation of shareholders and the company in which they own shares to hold that under customary international law the national state of a shareholder may not bring a diplomatic protection claim when the shareholder is harmed because the rights of the company are violated. This article contends that the considerations that justify the equivalent general rule in domestic law do not necessarily apply in international law. Where they do not, and shareholders would otherwise be left without any protection, the national state of those shareholders should be permitted to espouse a claim on their behalf for harm caused to them flowing from harm caused to the company.
Second, the Court held that the direct rights of shareholders, which their national state can indisputably enforce by way of diplomatic protection, are those rights held by the shareholders under domestic law in their relations with the company. This article contends that shareholders have direct rights under customary international law, and that where their national state takes a diplomatic protection action in defence of shareholders� direct rights, international, not domestic law should be the law applicable to that claim.
