Subjects Of International Law PDF

SUBJECTS OF INTERNATIONAL LAW Legal personality in international law A subject of law ‘is an entity of a type recognized by customary law as capable of possessing rights and duties and of bringing international claims, and having these capacities conferred upon it.’ (Brownlie) Legal pe...

SUBJECTS OF INTERNATIONAL LAW Legal personality in international law A subject of law ‘is an entity of a type recognized by customary law as capable of possessing rights and duties and of bringing international claims, and having these capacities conferred upon it.’ (Brownlie) Legal personality in international law International Legal Persons can: Make claims before tribunals Be subject to some or all of the obligations Chargement… imposed by international law Have the power to make international agreements Enjoy some or all of the immunities from the jurisdiction of the national courts of other states Legal personality in international law If a category does not enjoy legal personality, then ‘[t]hey must therefore be objects; they are like ‘boundaries’ or ‘rivers’ or ‘territory’ or any of the other chapter headings found in the traditional textbooks.’ (Rosalyn Higgins)  States as principal subjects of international law ‘The State as a person of international law should pose the following qualifications: a) a permanent population b) Chargement… a defined territory c) government; and d) capacity to enter into relations with other States.’ (Article 1 of the Montevideo Convention on the Rights and Duties of States 1933)  (a) Population Contrast China (pop.1,403,500,000) with Nauru (pop. 9,378). Look at Vatican City (non-self-replicating. In 2005 only 144 lay persons had citizenship). Non-nationals may be a large proportion (see Luxembourg (47.9%) and the Gulf States (between 1/3rd and 4/5ths)).  Nationality in international law ‘It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’ (Article 1 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930)  Nationality in international law Different States accord nationality on different grounds, which are these? Nationality and Diplomatic Protection Nationality and Diplomatic Protection  Nationality in international law But because nationality is meant to reflect the existence of a social bond between a national and their State or nationality it may not, in certain limited circumstances, be opposable to other States. Chargement… ‘nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.’ (Nottebohm case, ICJ)  Modes of acquisition of territory Traditionally, international law has recognised five methods of acquiring territory: i. Occupation, ii. Accretion, iii. Cession, iv. conquest (or subjugation), and v. Prescription..  (i) Occupation ‘The actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary Only applies to terra nullius. ‘Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organisation where not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through “occupation” of terra nullius by original title but through agreements concluded with local rulers.’ (Western Sahara advisory opinion)  (ii) Accretion Accretion is distinguished from avulsion. Both are the result of natural forces, but whereas accretion is gradual and imperceptible, avulsion is sudden. Examples include the Chamizal dispute between the USA and Mexico (accretion, over 2.4 km²) and the dispute over the island of Ferdinandea (which arose out of the Mediterranean in 1831 and was disputed between four States before disappearing in back into the sea in 1832).  (iii) Cession The establishment of title by agreement, usually by treaty. An example is the cession of Gibraltar by Spain to Great Britain in the 1713 Treaty of Utrecht. An unsuccessful example was the agreement between Guillaume III and Louis-Napoléon to sell Luxembourg to France in 1867, which led to the 2nd Treaty of London.  (iv) Conquest No longer a valid method of acquiring title to territory. ‘The territory of a State shall not be the acquisition by another State resulting from the threat or use of force.’ (Friendly Relations Declaration)  Self-determination Article 1(2) UN Charter: The purpose of the United Nations includes ‘developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’ Article 55 UN Charter: to promote ‘higher standards of living, full employment, and conditions of economic and social progress and development’ to support the self-determination of peoples  Self-determination Right to Internal Self-Determination: Not all claims to self-determination lead to demands for independence. Many peoples or groups assert their right to self- determination through autonomy or self-government within an existing state. Right to External Self-Determination: In cases of severe oppression or colonial rule, self-determination may Rule of “jus cogens” (customary law) Rule of “jus cogens” (customary law) “international custom, as evidence of a general practice accepted as law” (customary international law) Traditionally, it has been necessary to show two elements to prove the existence of a customary rule: Practice (which alone is not enough) or, to be more precise, the existence of an established, widespread and consistent practice on the part of States, and opinio juris sive necessitatis (opinion as to law or necessity).  What is State practice? It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from use of force or from intervention in each other's internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way What is opinio juris? Not only must the acts concerned amount to a settled practice, but they must also be such, or carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it. The need for such a belief, ie the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates. North Sea Continental Shelf cases (Germany v Netherlands, Germany v Denmark) Examples of customary international law Peremptory norms (jus cogens) forbidding slavery, torture, genocide, wars of aggression, & crimes against humanity Article 53, Vienna Convention on the Law of Treaties 1969 Treaties conflicting with a peremptory norm of general international law (“jus cogens”) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.  (c) Government The existence of effective government, with centralised legislative and executive organs and exercising public power over the people and within a certain area, is the best evidence of a stable political community. In practice, however, the requirement of ‘effectiveness’ is often diluted. Prof. Matthew Happold [email protected] Individuals as subjects of international law? ISDS ISDS is the most important component of International Investment Agreements (IIAs) and has significant influence on how disputes between states and investors are resolved 93% of IIAs offer investors the possibility to choose from among at least two arbitration fora ICSID and ad hoc arbitration under the UNICTRAL Rules are by far the most frequently  proposed fora. International Center for Settlement of Investment Disputes (ICSID) ICSID is the most preferred arbitration mechanism for investors with 55% of all ISDS claims filed under the Convention UNCITRAL follows as the second most used arbitration mechanism with 31% of all ISDS claims Why is ICSID so popular among investors: Self-contained regime: No appeal possible but annulment and: (in principle) automatic enforcement of ICSID awards Definition of individual investor ICSID Egypt-Finland IIA More restrictive Typical definition “Article 25(2)(a) extends “[t]he term "investor" Chargement… means, for either Contracting Party, […] ‘[t]he jurisdiction of the Centre’ to: ‘[A]ny natural person who had the (a) any natural person nationality of a who is a national of Contracting State […] but either Contracting Party does not include any in accordance with its person who […] also ha[s] laws” the nationality of the Contacting State party to the dispute.” Garcia Armas et al v treaty Investment Venezuela, provides for both www.mpi.lu - ‹#› -  ICSID and Garcia Armas et Investment treaty Only requires nationality of the home state al v Venezuela, Venezuela’s objection to jurisdiction: Customary rule of effective and dominant nationality applies Undisputed stronger connection with Venezuela, thus no BIT jurisdiction UNCITRAL Objection rejected www.mpi.lu - ‹#› -  Spain- Green-light for investors to bring www.mpi.lu - ‹#› - Definition of corporate investor UK-Salvador BIT IIAs concluded with the ICSID Netherlands Typical definition Also protects local Most liberal definitions companies Defines investors, ‘in Netherlands-Bahrain Article 25(2)(b) applies to respect of the United ‘[a]ny juridical person Kingdom’, as BIT, for instance, covers which ha[s] the ‘corporations, firms and both ‘legal persons nationality of the associations incorporated incorporated under the Contracting State party to or constituted under the law of a Contracting the dispute […] and law in force in any part State or legal persons which, because of foreign incorporated in [a third] control, the parties have of the United Kingdom state, but controlled agreed should be treated or in any territory to directly or indirectly by as a national of another which this Agreement is Contracting State for the extended’ nationals of a purposes of this Contracting State’ Convention’ www.mpi.lu - ‹#› - www.mpi.lu - ‹#› -  Provisions offering investment protection Compensation for Indirect Expropriation Gold rule: every state has the sovereign right to expropriate assets in its territory assuming it meets certain conditions France-Hungary BIT UK-Sierra Leona BIT Investments of nationals or companies of either ‘The Contracting Parties shall not take any Contracting Party shall not be nationalised, measures of expropriation or nationalization or expropriated or subjected to measures having any other measures having the effect of directly or effect equivalent to nationalisation or indirectly dispossessing the investors of the other expropriation (hereinafter referred to as Contracting Party of their investments […] except "expropriation") in the territory of the other for a public purpose and provided that such Contracting Party except for a public purpose measures are not discriminatory or contrary to a related to the internal needs of that Party on a specific commitment non-discriminatory basis and against prompt, […] Any measures of dispossession which could adequate and effective compensation. be adopted must result in the payment of prompt and adequate compensation’ www.mpi.lu - ‹#› -