International Law Outline Spring 2009
International Law Outline Spring 2009
International Law Outline Spring 2009
The current state of international law: o Moved beyond states exercising sovereignty to maximize their interests o Two functions: Devise rules that allow pursuit of interest without infringing on the rights of others Rules about rules: rules of recognition The Liberal Worldview of the Intl Order: o States are autonomous agents in the world trying to maximize their national interest; the preservation of that autonomy and liberty is the purpose of the state o The classical liberal worldview glorifies the individual (state) as an autonomous moral agent prompted by self-interest. o Functions of international law in the liberal worldview: Enable states to pursue their national interest without interfering with other states pursuing their national interest Serve as rules about rules [about the Legal System] Grease the wheels of international interaction (ostensibly value-neutral rules) The Communitarian Worldview of the Intl Order: o Collaboration, not just for the sake of co-existence and coordination, but for the sake of greater strength and benefits o We cant expect altruism from states, but it is a form of enlightened self-interest to say that in some respects autonomy does not always correspond to national interest o Manifestations of Communitarianism Certain types of international institutions, international governing bodies Certain international treaties, i.e. regarding Human Rights, environment, etc. o Once we form an international community, we automatically have values that promote that community; therefore, Communitarian Regimes are not necessarily more peaceable than Liberal Regimes, because they introduce conflicts about values o Basic functions of law in the communitarian worldview: Promote common values for the good of all Allow for positive-sum (win-win) interactions Deal with collective action problems State-Centered nature of international law
o o
States are the primary actors; international law is both an instrument and a reflection of state power See discussion of subjecthood: To vindicate rights, individuals need diplomatic protection or representation from a state. Individuals do not make the law.
Functionalist nature of international law & the rise of multilateral treaties. Caused by: o Technological innovation o Cold-war ideological cleavages that increases need for a legal order but makes the creation of customary law more difficult o Proliferation of actors after decolonization
Considerations of order and justice o See these as the primary aims of international law o Areas of tension The evolution of customary law (status quo, dominated by rules favorable to the West, prevails until a new rule can come into being; see Texaco arbitration). Sovereign equality vs. humanitarian intervention State responsibility and the right to take countermeasures Making the law: protonormative action and the development of law o States base their own actions and policies in part on their effects on the development of international law Conduct in treaty-preparation Decisions to protest or abstain from protest Diplomatic statements o States actions may fall into three categories: Acting in accordance with recognized law Acting protonormatively to change the rule (Acting as a persistent objector to a recognized rule) Breaking the law
Hierarchy of Sources
The general hierarchy of sources in international law is fuzzy, partially because there is no formal organization of courts
Jus Cogens
Substantive rules that manifest a communitarian vision Generally: o Mandatory or peremptory norm of international law: accepted by the international community as a norm from which no derogation is permitted o Can be modified only by a later norm of the same character Test: o Universal acceptance of the rule [Weiler: not exactly universal]; and o Overwhelming majority recognize as jus cogens. o Note: Rule must be based on treaty or custom; many states are hostile to the idea that general principles may be an independent basis. Effects of jus cogens: o Relationship with treaties: An agreement that violates a peremptory norm is void ab initio. o Violations my preclude state immunity o Even Security Council resolutions may not violate jus cogens Basis: acceptance of fundl & superior values w/in the system; reflects influence of natural law
Examples: Genocide, slavery, aggression, apartheid, torture, respect for the right of selfdetermination
Judicial decisions:
As noted by the ICJ statute, decisions are subsidiary sources, but they are highly influential. Some writers attempt to formulate judicial decisions as law-verifying, not formulating, but international judges do seem to formulate law. International Court of Justice: o ICJ decisions have no binding force except as between the parties (Art. 59)
However, courts tend to follow its judgments, and within the ICJ, previous cases will be the courts starting point o Examples of binding doctrine inspired by the ICJ: Anglo-Norwegian Fisheries: Boundaries Reparations for Injury: Legal personality of international institutions Genocide: Reservations to treaties Nottebohm: Nationality International arbitrations and international criminal tribunals also offer sources National courts may evidence custom, state practice.
The practice of interested states must be Consistent; and virtually uniform. Note: This case dealt with developing customary law out of a treaty, so that non-signatories could be bound o Nicaragua case (ICJ 1986): Practice need not be in absolute rigorous conformity with the customary rule Threshold for custom General consistency Inconsistent activity is treated as breach o Instant custom In some cases, clear opinio juris can establish custom even when there is no repetition Example: The extension of sovereignty to airspace Test: Consider the strength of the rule about to be overthrown Relevant factors: o Newness of the situation o Lack of contrary rules o Necessity to preserve a sense of regulation Generality: o How much practice is enough o Unequal influence: States may have a disproportionate influence on custom according to: Power/wealth. Relevant divisions: Wealth: Global North v. Global South Regional breakdown Cultural Divisions: Secular states, Islamic states, etc. There is a question about whether customary law can form if any major bloc objects. Special relationship to the subject matter o The above fact is justified by conspicuousness: Such factors make it easier for all states to discover the practice Significance of the failure to act: o Abstention creates negative custom only if it is based on a conscious duty to abstain (see Lotus, PCIJ, 1927 conscious of a duty to refrain from exercising jurisdiction). o This includes a requirement of actual awareness Investigating state practice o Sources: Historical record, memoirs of leaders, manuals on legal questions, state comments on ILC drafts, etc. Even internal law may be consulted (Scotia case, U.S. 1871). o Treaties: These are often referred to, but remember that existence of treaties on a matter shows that the rule is not customary. o A minority of commentators claim that such statements are no evidence of actual practice
Opinio Juris
General Rule: Opinio Juris is always found in the context of the action o Particularly probative when the rule goes against the interests of the specific state o Legality of Nuclear Weapons: Look for times where they might be used, but a state chose not to use them. Discussion in ICJ o Lotus: For abstention to be custom, need to be conscious of a duty to abstain. o North Sea Continental Shelf (ICJ): Must show a general recognition that the rule of law is involved Tanaka dissent: Should infer opinio juris from the material fact of state actions o Nicaragua (ICJ 1986): Reaffirming NSCF, requires evidence of opinio juris belief. Proving opinio juris o Key: Determine the attitude of the state concerned at the time of codification or adoption o Look to General Assembly resolutions the content and conditions of adoption o Codification conventions o Paquette Habana (U.S. S.Ct, 1900) Establishes a custom that coastal fishing vessels are exempt from capture Notes that, where law is broken, countries took effort to explain that they were merely taking advantage of certain exceptions. Implies a recognition of the general rule Note: Its always more probative when a party accepts something that is against its interests o North Sea Continental Shelf cases: Cannot find opinio juris due to a lack of evidence. Note this does not mean that such opinio juris does not exist.\] o Lotus: Failure of the French to protest suggests that France does not necessarily follow the rule it insists upon here. (This is weak: If there is no rule, then why protest? France actually loses the case on the compromis) Burden of Proof: This is always the most difficult hurdle in international law. The system is loaded in favor of the status quo (See Texaco).
Changing Custom
Establishing new customary law: o Claim o Absence of protest from interested states o Acquiescence from other states Anglo-Norwegian Fisheries case suggests that a state is not bound by custom when it acts contrary to that custom and other states acquiesce. But in this case, Norway had long objected to the rule at issue. Acquiescence o Defined: Tacit recognition, manifested in unilateral conduct, that the other party may interpret as consent (Gulf of Maine, ICJ, 1984) o Two views: Permissive perspective: Silence is considered to be consent. Protest is required to break rule-formulation Lotus: Only if lack of protest comes from conscious duty to abstain. o Principles of good faith apply to these determinations
Problem of protest: States may protest or acquiesce for many nonlegal reasons Persistent objectors o Constant protest by a minority may create an exception o A state is not bound by a custom it has protested since the rules inception o It is extremely difficult to maintain this status The Problem of New States: o Traditional View: New states are bound by all existing customs o Opposing view: Allow states to choose o Generally accepted pragmatic view: Entering into relations with existing states signifies acceptance of the totality of customary law
Note: If the answer is no, a treaty still may generate custom; it will simply be harder to prove. Step Two: Look to practice of unbound states Question: What principle is applied by states that are not bound by the treaty when they are faced with this dispute? Note: Where the provision is not norm-creating (say, an alternative to a default rule), a court might require more widespread practice. This is because a state might not realize the need to protest a non-normcreating provision, so silence is less useful here. o Provision crystallizes customary law There is sufficient practice at the time of the treatys conclusion, and the treaty itself provides the necessary opinio juris. The process may provide this missing oj: speeches, debate, discussion, negotiation. A provision of a GA resolution may also be binding if it represents an authoritative interpretation of the UN Charter. This can also be done in the context of other treaties that provide for a means of authoritative interpretation, such as the WTO.
Deciding whether a statement is a reservation: Interpret the statement in good faith, according to the ordinary meaning of its terms, in the context of the treaty in question. (917-18). Rules governing reservations: o Traditional Rule: Reservations may be made only with the consent of all other parties Purpose is to preserve unity and minimize deviations More likely to apply where there are fewer parties (art. 20(2)). o Modern rule: May be made when signing, ratifying, etc., but not where prohibited, or where the reservation is outside the object & purpose of the treaty. (article 19). o Reservation can similarly be exercised by the party who accepts it, with respect to the reserving state. (Art. 21). o When a state rejects a reservation, it does not render the whole treaty inapplicable between the two parties, just the provision reserved. (Art. 21(3)). o Unresolved question: What is the effect of an impermissible reservation? Justifications: o Reflects the principles of sovereignty o Can encourage more states to join Problems: o They can jeopardize the negotiation o Should be distinguished from other statements that are not meant to have legal effect. But note the Belios case (p. 916): Swiss made interpretive declarations to treaties that prohibit reservations. The court interpreted the declaration to be a reservation, then discounted it because no reservations were allowed.
Elsewhere, see a less-than-independent territory, e.g. Kosovo, being recognized as a state. Need another explanation: Its clear that some states emerge without meeting one or more of these criteria (Congo), so all factors are clearly not necessary. Moreover, its not clear how any of them are supposed to be satisfied.
Self-Determination
The right of self-determination has lowered the standard for the exercise of authority o E.g., Congo in 1960 had two factions seeking control; o Guinea-Bissau in 1972 was declared independent despite the fact that rebels controlled neither any major towns nor the majority of the population. The emergence of the right to self-determination: Declaration of Friendly Relations o If the DFR is an interpretation of the UN Charter, then the right always existed. But no one recognized such a right prior to the declaration o Perhaps the right of self-determination is customary law, crystallized at some point in the 1960s o Note tension between 1-2 and 8-9: No terra nullius is left, so the only way to vindicate the right to selfdetermination is to break up a state, which is prohibited by the latter paragraphs. Solution: See mention of former colonial states in 2(b) as an exception to this rule. Paras. 8-9 represent these former colonial states trying to consolidate their power. How to deal with the right to self-determination: o DFR, 7: You have the right to national unity, so long as you act in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people. See also Reference re Secession of Qebec Construe paragraph 8 (no state shall interfere) to refer to third-party states o Problem remains of defining peoples
Extinction of states
Modes: Merger, absorption, annexation, dismemberment, geological disappearance NB: This is distinct from the disappearance of government State succession
Rights of states
Rights are guaranteed by virtue of the international legal order (Question: Is this a secondary rule existing as a general principle?)
Independence/Sovereignty
Starting point: International law permits freedom o ILC Draft Declaration on the Rights and Duties of STates (1949): Capacity to provide for itself free from domination o Lotus: Restrictions cannot be presumed Implied rights: territorial jurisdiction, self defense Implied duties: Noninterference
Equality
Equality of rights and duties of states Views: o Natural law: Equality is a natural condition o Positivism: Rejected the formulation of a general rule generating rights and duties
Peaceful coexistence
Five principles (India & China, 1954): o Mutual respect for territory o Mutual respect for sovereignty o Non-aggression o Non-intervention o Equality Soviets viewed this as the guiding principle of international law
Territory
Territory is a crucial element of a state. It is also a key part of international relations disputes. Since 1945 the principle is that you can no longer acquire title through conquest. Belligerent occupation gives some rights, but not title. This process is much less sophisticated than national law (property). But it is, in some views, the most important thing in IL. The rudimentary nature of territory law shows that law is not whats important, but peace. (in lecturers view). It therefore doesnt resolve things permanently.
Territorial Sovereignty
One of the key principles of international law is that a state has sovereignty over its territory, and is not to be interfered with in its control of that territory. Thus one of the major elements of statehood is that it entails sovereignty over a given territory. As is evident in Hubers discussion in Palmas, two states may claim sovereignty but one may have a better claim to effective sovereignty. On the other hand, one state may have a better claim to title. o There may be a discontinuity between law and facts. o the sociologist may say that the supposed title is inchoate and useless since the state is not effectively sovereign, while the lawyer may say that the effective controller is an illegal occupier Conditions of territorial sovereignty. Competing methodologies: o Island of Palmas (1925) Title: No intent is needed to obtain title. Territorial sovereignty is a question of facts, not intentions. Effective occupation Need actual and continuous and peaceful display of state functions. Constructive knowledge: Conditions need be such that any power who claims right over the territory to visit and view a contrary situation NB: A notice requirement, assess sovereignty on basis of reasonableness Relationship to recognition: Title to the island is a matter of facts, which would lean toward a declaratory role for recognition o Legal Status of Eastern Greenland (1931) Intention or will: Norways claims are prevented by her acceptance of treaties with Denmark that proclaimed Danish claims to all of Greenland. Actual exercise: This is weak. It is possible to satisfy a tribunal with very little in the way of actual exercise of rights Compare claims Relationship to recognition: Gives international recognition a high probative value.
Uti Possidetis
A principle of effective control. o Originally applied to conquest, when fighting was over the new borders were drawn according to control. Now conquest is banned, but the principle has been applied to decolonizationthe borders of the emergent state are what they control. o ICJ, Burkina-Faso v. Republic of Mali (1986)(applying the principle to decolonization: *Uti possidetis+ is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.) NB: control was much more important in the Palmas case than in Greenland, but there is always some kind of need for it.
Conquest: Almost all commentators say that conquest, even if legal and effective, is not enough to transfer title. It is difficult, however, to find positive law backing this up.
Conceptual framework
What is decisive for subjecthood in international law? o Objects have rights, though presumably not duties. What differentiates subjects from objects? Is it the capacity to enforce their own rights? Or perhaps their authorial role in norm creation? o States possess both of these elements. They are the plenary subjects. But a case can be made that individuals have some growing, though still very limited, capacity to enforce their own claims. Also corporations have a very limited role to play in normcreation, as for example through making international contracts and thereby shaping state practice. But obviously they are playing the subsidiary role here, and the analogy is very stretched. In domestic law, an entity is an object of law if there are laws pertaining to it. An entity is a subject if in some way it is an author of the law.
Theories of Subjecthood
Legal/Legalistic view: a subject of international law is an entity with a certain degree of personality, i.e. with rights and duties, and capable of making claims and have claims brought against him. o Subjecthood is based on an accumulation of rights and duties and remedies (i.e. capacity to bring claims). o The path to Subjecthood under this model is accruing more and more rights, duties, and remedies. o [Under this conception, individuals really are getting subjecthood]. Political view: a subject is an entity who is to some extent author of the laws granting his rights/duties/remedies. o The rights and duties of a subject are inherent in him or her, but are not given to him. The bearer of rights and duties is relevant in authoring the rules that grant him rights/duties/remedies. o [By this vision, individuals will become subjects only when some way is found to replicate the domestic democratic legitimacy. Real subjecthood is not made through rights, but through power.] o Weiler seems to favor this view on subjecthood, ( Rousseauean) These two theories are based on two competing visions of IL. Both of them are very important Partial Subjecthood: o Under either conception of subjecthood, it is possible to conceive of a partial subject. o Under the capacity theory, something can just have a certain degree of capacity, without reaching the plenary subjecthood enjoyed by states. o Under the authorial theory, some entities may have limited capacity to participate in authoring international law, E.g.: In limited branches of law, like human rights law (see G.A.) Among a limited group of states (e.g. the WTO can author laws binding upon its members).
Methodological approach
If we want to understand whether an entity has subjecthood, it must be compared to the plenary subject: the state. o Q1: Does the entity have international legal personality? Q1a: what does state practice say? In cases of IOs, we look to the charter and ask whether states intend to give it international personality? There may be room for subsequent understanding/practice in the analysis. o Q2: What is the scope of its personality? (the scope of its rights/duties, and capacity). Same kind of analysis as Q1, though there is perhaps more room for analysis of subsequent practice. o Q3: To whom do these rights/duties or capacities apply? Just states who have granted them explicitly, or to other states as well? (e.g. the members of an organization who have given it certain rights and duties, or nonmembers as well?) Q3 is always the most difficult Fundamental Question: has there developed a rule of public international law saying that this kind of entity can have rights/duties opposable on all states?
Subjecthood of States
States are the plenary units of international law. They are both the exemplary legal persons, and subjects of international law. They are full persons, and full subjects (if it is possible to possess partial personality, or partial subjecthood). o See supra for a close analysis of the legal criteria in the international juridical concept of a state. The question of whether any of the following entities possess subjecthood (full or partial) must be posed in comparison to states, the plenary subjects.
o o o
Art. 104 gives the UN domestic personality within the territory of members states In monist systems (e.g. United States), an organization has domestic personality if it has international personality In dualist systems (e.g. UK), DP requires express incorporation: Incorporation of treaty by Parliament Explicit recognition by executive Order in Council Comity (entities incorporated into domestic law of a recognized foreign state have domestic legal personality in UK) [Arab Monetary Fund v. Hashim (No. 3) (UK 1991)].
The ICJ decision indicates that at least in some limited capacity certain IOs have available a remedy somewhat akin to diplomatic protectionthe capacity to bring derivative claims on behalf of their members. o Affiliation required: Its a functionalist test Since an individual cant be a national of an intl org, the requisite affiliation is the fact that he was acting on its behalf and exercising one of its functions. (Reparations for Injury). Note: UN Security Councils broad discretion to respond to breaches of the peace (Tadic, ICTY 1995) o Establishment of a criminal tribunal is legal under Ch. 7, though not enumerated o SC has broad discretion, though not unlimited. o Reasoning here seems incomplete.
Advocacy methods
Assume states create an organization, and are silent as to whether they give it personality. When arguing before a court, it is important to get a sense of its hermeneutic sensibility. o E.g. The ICJ has a functionalist sensibility. Between two interpretations, I will choose the rule that corresponds to the needs of the international community. WTO is more textual The following are derived from Reparations for Injury (ICJ 1949) Arguing existence of international legal personality o 1) Functionalist argument: states created an organization, and gave it functions. Those functions require the attribution of intl personality (either because they cannot be fulfilled without it, or cannot most efficiently without it). Next ask if subsequent practice implies this argument. o 2) Super-functionalist argument Having personality is the most effective way for UN to fulfill its functions. Assumes that states intended UN to be functional, effective. IMPORTANT: This assumption is supported empirically by state practice. o 3) Institutional argument: The organization has an institutional setup distinct from the sum of its members. Proof: permanence / majority voting (as opposed to consensus). Scope: Personality includes the right to bring claims o Institutional: If UN has any rights or duties, it must be able to vindicate them effectively. o Functionalist arguments: LOYALTY: UN officers would refuse to enter risky situations but for assurance that UN could bring claims on their behalf. INDEPENDENCE: If UN couldnt bring claims, officer would be dependent on his state of nationality to do so. But that state wouldnt necessarily bring a claim. Suppose the officer was a national of the state that harmed him. Opposability: Personality is objective. o Arguing subjective personality is easy: members have consented to cession of certain rights o Recognition: Subjective recognition of UN by vast majority of states has converged into objective personality (Reparations 27). Note: This method is highly political.
Positive rue of customary international law: Not in Reparations, but it could be that practice and opinio juris is such that states may create organizations with international personality without overwhelming recognition. Its definitely arguable that this norm has developed since the 1950s, as a plethora of organizations have developed and asserted objective personality without protest This method would be depoliticized, because all states have a role in the creation of custom Case study. Russia and Denmark have a fishing dispute. Denmark is part of EC, which has established exclusive competence over member states fisheries negotiations. But Russia refuses to deal w EC; insists on negotiating w Denmark. How would you advise Russia? Recognition: Check whether other non-members have recognized personality of EC. Positive rule of CIL: Check whether a rule of CIL has developed that allows establishment of intl orgs whose personality must be accepted by nonmembers.
Subjecthood of individuals
General: o They have limited legal personality, and are basically objects, although in very limited circumstances this is changing.
Particular branches of international law here are playing a crucial role, such as Human rights law, the law relating to armed conflicts, and international economic law are especially important in generating and reflecting increased participation and perhaps personality in international law. [Shaw 197].
Corporations
Weiler punted here. Answer is, probably like individuals, except in that they are capable of contracting with states and providing for arbitration etc. in the contracts (see Texaco). In essence, they may be capable of authoring private international law. *NB: some argue that to an extent, BITs create a class investor with limited subjecthood in international law. Corporations can be such investors. This probably is only subjecthood by the Legal vision and not the Political vision.+ There is more here. See Injury to Aliens, infra.
On both individuals and corporations, see further Diplomatic Protection and the Nationality of Claims, infra.
Determining Nationality
Nottebohm case (ICJ 1955): An obsolete rule? o Established the effective nationality principle: In order to trigger the obligation to recognize DP claims, nationality must be based on Genuine connection (factually meaningful nexus); or Possibly birth. o Protection against abuses of intl implications of granting nationality Note: This principle is without prejudice to states power to grant nationality at their discretion for domestic purposes. Rule of thumb: Intl law abhors statelessness. Even if Nottebohms only connection to Germany was birth (i.e., no genuine connection), Guatemala would probably have to accept Germanys DP claim. Otherwise Nottebohm would have no recourse o Signs that this case has been overturned: ILC Draft Articles on Diplomatic Protection (2006): do not require genuine connection to establish nationality and argue the Nottebohm should be limited to its facts. Sui generis argument: this case was particular to the political climate of the second World War. Merg case (ItalianUS Conciliation Commn 1955): Relative Effective Nationality o Where two parent states are parties to a dispute over injury to a dual national, the state with predominant nationality (here, Italy) may exercise DP against the other state. Otherwise, DP is precluded by the principle of sovereign equality.
o o
This rule persists in the Articles on Diplomatic Protection (art. 7). The facts, however, would be decided differently, placing more weight on the individuals volition rather than circumstances of life.
o o
corp. has ceased to exist under internal law of state of incorporation for a reason unrelated to the injury; corp. bore the nationality of the state that caused the injury; and incorporation was a prerequisite for doing business in that state. Diallo case (ICJ 2007) Whether a company has legal personality distinct from shareholders is determined by relevant internal law. Gene: What does relevant mean? Possibilities: (1) internal law of state of incorporation, (2) internal law of shareholders state, (3) internal law of corps national state (however nationality is decided). If internal law determines that independent injury to shareholders has occurred, national state of shareholders may pursue DP in the usual way. UK has asserted the right to exercise DP on behalf of shareholders (on facts similar to Barcelona Traction) where the company is defunct (seen as exceptional instance). Lex specialis: Law of the Sea (LOTS) Convention dictates that only the flag state of a ship has the right to exercise DP on behalf of all property and persons on the ship
State Responsibility
Conceptual Framework: State Responsibility represents a system of second-order (or secondary) norms that flow from a breach of a substantive rule of international law. (See Shaw, p. 778). Caution: o These articles are not always intuitive, and common sense often will not work as well as it does in substantive rules of international law o There is no issue that will not involve state responsibility in some fashion Regime of State Responsibility: SR is customary international law, according to the Rainbow Warrior arbitration. (Shaw, 778). Weiler: The articles of state responsibility eliminate the need for a treaty on the subject (not everyone agrees with this position). General Policy o International laws reliance on self-help for executive and adjudicatory functions creates both threats to order and threats to justice: Threat to order: Escalation. Self-help works both ways Threat to Justice: The most powerful State will always have its say. o State responsibility evolves primarily as a response to this second problem. Uniform obligations for all wrongdoing states. Also a secondary effect to: o Contain Escalation: Because it allows self-help, the regime of state-responsibility does not prevent escalation, but it does limit escalation by proceduralizing the conflict.
Draft Articles appear to take a strict liability approach to State Responsibility, in the absence of a specific requirement for a mental state. (Art. 2, comment 10). However, Shaw (p. 785) notes that standards would vary with the primary obligation. o Cases: Neer claim (1926); Caire claim (1929) Alternate fault theory: o Requires intent or negligence o Cases: Corfu Channel (ICJ, 1949); Home Missionary Society claim (1920) (with respect to the acts of rebels). (Shaw, 783-84).
Imputability/attribution
Policy (p. 785): o Encourage States to exercise greater control over its various departments o Stimulate compliance with objective standards of conduct General rule: Attribution depends on the link between the State and the persons committing the unlawful act or omission. A legal fiction. (Shaw, p. 786).
Note: Situation may be different where the state responsible exercised clear, effective control of the territory in which the violation occurred. See Namibia case (ICJ 1971); Loizidou v. Turkey (ECtHR, 1995). Exercise of authority in default of the official authorities (article 9).
kind is the normal sanction). Consider enforcement problems and potential violations of sovereignty relating to restitution in kind here. (Shaw, 803-04). Compensation (article 36) Fair market value Loss of profits Monetary compensation may be paid for individual pain and suffering (Im Alone case, 1953). Satisfaction: apologies, punishment of guilty officials, acknowledgment of wrongfulness, assurances (article 37)
Countermeasures
Definition: Reprisals for an internationally wrongful act that does not involve the use of force. Requirements of countermeasures (See also Gabcikovo-Nagymaros Project) (Shaw, 794): o Must directed against a state responsible for an internationally wrongful act in order to induce compliance (article 49(1)). o Must be taken with a view toward resumption of performance (article 49(3)). o Notice requirements (article 52): Injured State must have called upon State committing the wrongful act to cease and make reparation, and notify of its intent to take countermeasures (article 52); Note: This does not affect the injured States right to take immediate countermeasures as necessary to preserve its rights (article 52(2)). o Must be proportionate (article 51); Limitations on countermeasures: o Limited to non-performance of international obligations toward the responsible State (article 49(2)). o Shall not affect human rights obligations, compliance with UN Charter, jus cogens norms, etc. (article 50(1)).
A State taking countermeasures must continue to fulfill (article 50(2)): Obligations under any dispute settlement procedure applicable between it and the responsible State. Obligation to respect inviolability of diplomatic or consular agents, premises, archives and documents. Termination of countermeasures: Countermeasures should cease as soon as the responsible State has complied with its obligations to cease and make reparation (article 53). See Case Concerning the Air Services Agreement Between France and the United States o Proportionality of countermeasures o Recourse to countermeasures in the face of judicial or arbitral proceedings
Categories of Force
Retorsion o The adoption by one state of an unfriendly and harmful act that is nonetheless legal Severing diplomatic relations Expulsion or restrictive controls on aliens Economic or travel restrictions Reprisals o Acts that are in themselves legal and have been adopted by one state in retaliation for the commission of an earlier illegal act by another state o Reprisals must be proportionate to the prior illegal act o Under Article 2(4), reprisals are divided into two groups: Countermeasuresreprisals short of force, may be used legitimately Reprisals using forceonly legal in conformity with right to self-defense
Right of Self-Defense
Tradl right of self-defense: instant, overwhelming need with no other options and no time for deliberation Article 51 of UN Charterinherent right to self-defense o Requires armed attack (victim state bears burden of proof) Self-defense against attacks by non-state entities? o Post-9/11 use of force against Afghanistan Anticipatory or pre-emptive self-defense? Necessity and proportionality
Variants on Self-Defense
Protection of nationals abroad o More controversial use of force after UN Charter Collective Self-Defense o State practice suggests that this is the basis for regional security systems
Intervention
Non-intervention Civil Wars o Treated as purely internal matters -intervention o Aid to the authorities of a state Legitimate to do so if requested o Aid to rebels Contrary to intl law (though state practice is murky) Humanitarian Intervention o Permissible to intervene in certain humanitarian situations?
Newly independent (post-colonial) states Assertion that the norms of international principles were developed without their participation or consent. Principles of SR are unjust, inequitable and colonial in character Post-1991, developing, ex-communist states see need for comity with capital-exporting states and recognize common interest in attracting investment
Adoption of the claim: From the time the state espouses the claim, it has exclusive control over the handling and disposition o State has exclusive control over the payment of damage awards o Private party will be bound by the withdrawal or compromise of a claim o Open question: the scope of the executives settlement power Circumstances precluding espousal: o Injured individual generally must exhaust local remedies (infra) o The injured party has broad rights to settle before the state espouses the claim. Reparation does not generally encompass any injury to the state itself. Forms of settlement: o Negotiation: Lump-sum settlement of all outstanding claims o International Court of Justice o Submission to arbitration under a multilateral treaty o Establishment of an ad hoc tribunal o Creation of a special bilateral regime of tribunals to hear specified claims
A treaty may not tacitly dismiss the rule (Elettronica Sicula): a dispute-resolution clause that contains no reference to the rule is not sufficient grounds to dispense with it. o But see Garcia-Armador: It will always be necessary to ascertain the purpose of the treaty Situation may be different in a contract with an alien that contains an agreement to arbitrate future disputes o Support for the position that there is generally implied waiver of the local remedies rule o Limitation: A contracting state can require exhaustion as a condition of its consent to arbitration
Nationality of Claimant
A State may only assert a claim on behalf of a national (either physical or legal person) Problem of multiple nationalities: o A respondent state may refuse a DP claim by another state if the injured person: Is also a national of the respondent state; or Is also a national of both a third state and the respondent state, and the respondent state treats the person as a national for purposes of the conduct associated with the claim. o A claim may not be refused if the nationality of the claimant state is dominant (a question of the strength of the injured aliens ties).
Stateless persons: Generally, no state may assert a claim on behalf of a stateless person (except under human rights law). But remember, supra, international law abhors stateless persons, for fear of leaving a lack of redress. Where an injured persons nationality changes: U.S. has longstanding practice of declining to espouse claims which have not been continuously owned. (1960).
Attribution
Injury must be attributable to state De jure and de facto agents See the articles of State Responsibility, supra.
Arbitrary/unreasonable use of force by governmental representatives (torture, excessive force, inhuman treatment). Other claims o Some are on shakier ground, and may apply only to resident aliens: freedom of speech, freedom of religion, freedom to travel, right to marry or divorce o Some claims, such as social security or aid to indigent, may be denied on the ground that discrimination against non-nationals is permitted. o Note: No record of a state objecting to imprisonment of its nationals for debt, although that is prohibited by art. 11 of the ICCPR. (Restatement). Denials of procedural justice not rising to the level of HR violations o E.g., denial of access to courts for civil proceedings to determine the aliens rights o International agreements generally provide for such access General guidelines for hard cases o Injustice must be egregious Minor procedural irregularities are not sufficient E.g., failure of a witness to take an oath, incorrect but good faith misapplication or misinterpretation of the law, improper dismissal of a case for lack of jx. o So obviously wrong that it cannot have been made in good faith and with reasonable care or a clear serious miscarriage of justice
Operative question: What did the state do to avoid the danger, or could the danger have been avoided? Where the state neglects or fails to take reasonable measures, responsibility will attach Failure to extradite transnational terrorists has not been recognized as a basis Failure to apprehend and punish has also not been recognized, despite the above principle
is not accompanied by provision for just compensation. Just compensation is defined in terms of the Hull Formula: amount equivalent to the value at the time of the taking (or with interest), paid within a reasonable time, in a form economically usable. R3FR 712(3) A state is also responsible for other arbitrary or discriminatory acts/omissions that impair property or other economic interests. Note: A taking will also be unlawful where it violates a treaty (Chorzow Factory) o Expanding the rule: Public purpose: Challenges on this ground are rare, and it is thought to be broad Discrimination: Implies unreasonable distinction; it is assumed that classifications based on state security or economic policies would be acceptable. Open question: The use of just compensation by the U.S. is disputed. To what extent does international law impose a duty to pay compensation in the event of a lawful taking? Requirement of Compensation o Controversy: Whether the issue of compensation is to be determined by international law GA Res. 1803 reflects the proposition that compensation for expropriation should be determined under IL (supra). Also adopted by the R3FR However, as noted above, subsequent resolutions reflect an effort to undermine this proposition o Texaco v. Libya (1977): Res. 1803 constituted authoritative evidence of custom because it was supported by states representing all areas and economic systems. o Current state of the law: States have accepted that these disputes may be governed by bilateral treaties. BITs specifically provide for full compensation. Arbitral bodies have consistently concluded that the issue of compensation was to be determined under customary international law or by treaty. Determining the Proper Measure of Compensation o U.S. view: Just Compensation (R3FR 712, cmt. d) the Hull formula. Elements (not fixed or precise) Equivalent to the value of the property o Fair market value o Takes into account going concern value o Other generally recognized principles of valuation Paid at the time of taking or with interest from that date Economically useful form o Convertible currency, without restriction on repatriation o Payment in bonds may satisfy the requirement if: They bear interest at a reasonable rate There is a market for them o Unacceptable forms: Nonconvertible currency Payment in kind (as in investment in natural resources) Departure is impermissible if (need only one): Property taken had been used in a business enterprise that was specifically authorized or encouraged by the state;
Enterprise taken for operation as a going concern by the state; Taking program did not apply equally to nationals; Taking was otherwise wrongful under 711(a)-(b). Deviation allowed: may include programs of agricultural land reform o The adequate, prompt and effective standard has been rejected by many developing countries, and is absent from several multilateral agreements o Evidence of the Hull formulas persistence: Gann: Arbitral tribunals persist in requiring the expropriating state to pay the full market price. (Me: what about prompt and effective?) NAFTA: Though it does not use the Hull terms, it effectively adopts the standard o Just v. Appropriate Compensation (Schacter, 1984): Argument: Replace just compensation with appropriate Effect: Appropriate might allow weight to be given to the needs and capabilities of the expropriating state. Allows consideration of complex factors Introduces the principles of unjust enrichment Appropriate compensation has the support of capital-importing countries Justifications for just: Used widely in domestic constitutional law (Fifth Amendment) Appropriate would create uncertainty by replacing just Considering the needs of the expropriating state could lead to injustice vis--vis the property owner o IMF Guidelines on the Treatment of Foreign Investment Presented as progressive development No expropriation except: In accordance with applicable legal procedures In pursuance in good faith of a public purpose Without discrimination on the basis of nationality With payment of appropriate compensation o Adequate (based on fair market value) o Effective o Prompt What Constitutes a Taking of Property? o Unreasonable interference with the use, enjoyment, or disposal of property to justify an inference that the owner thereof will not be able to use, enjoy or dispose of the property within a reasonable period of time. (Sohn & Baxter) o The above may not constitute a taking if it constitutes a reasonable exercise of state power to regulate: Matters of public order, safety, or health Currency, foreign exchange resources, balance of payments or emergency situations E.g. French v. Banco Nacional de Cuba (NY Ct. App. 1986): a U.S. court will not inquire into the validity of an act of state o The line between taking and regulation Restatements view:
A state is responsible for taxation, regulation, or other action that is confiscatory, or that prevents, unreasonably interferes with, or unduly delays effective enjoyment Not responsible for loss of property or other economic disadvantage resulting from: o Bona fide general taxation o Regulation o Forfeiture for crime or other act of police power o Provided: the act is nondiscriminatory and is not designed to cause the alien to abandon the property or sell at a distress price Arbitral tribunals Harza Engineering v. Iran: dishonoring claimants check and frustrating attempts to authenticate its officers signature is not a taking Computer Sciences Corp. v. Iran: Failure of bank to seek central bank permission for fund transfer is a taking Breach by a State of its Contractual Undertaking to an Alien o When does a breach of an undertaking by a state to an alien constitute a breach of international law? Statist extreme: Because only states have rights and obligations under international law, a state can limit its exercise of sovereignty only by agreement with other states, and not with individuals Other extreme: The doctrine of pacta sunt servanda applies in the case of any agreement between a state and an alien relating to investment or concession o Choice and Effect of Governing Law Parties are generally free to designate the body of law that will govern the validity, interpretation, and performance of the agreement, and international tribunals generally accept choice of law provisions as binding In the absence of explicit choice, the following questions arise: Should there be a presumption in favor of the municipal law of the contracting state? Should reference of a dispute to an intl arbitral tribunal imply a choice as to governing law, or at least a rejection of municipal law as controlling? Stabilization clause: the agreement will be governed throughout its term by the municipal law in force at the time the agreement is concluded Texaco v. Libya (1978): Internationalizing a contract Clause on governing law: Reference to the general principles of IL o This alone is a sufficient criterion o Need for the private party to be protected against abrupt and unilateral shifts in legislation Submission to arbitration o Also sufficient o Certainly allows the negative implication that contract meant to reject the exclusive application of local law (Sapphire International) Nature of economic development agreements
Broad subject matter: the party contracted with is associated with the realization of economic and social progress of the host country o The long duration of contracts implies close cooperation between the host country and the private party o Contractual nature: intended to bring about an equilibrium between the general interest and the profitability. o Evidenced by a stabilization clause which tends to remove the agreement form the internal law and provide for submission to sui generis rules. Scope of internationalization: neither means that private party becomes like a state or that the contract becomes a treaty. o Limited subjecthood: The private party gains the necessary degree of international personality and capacity to bring a claim o Relevant law: Reference to Libyan law requires the tribunal to combine domestic and international law, and verify the conformity of the first with the second. In this case Libyan law recognizes the principle of the binding force of contracts. A states right to exercise its sovereignty by nationalizing property is w/o prejudice to that states obligation to honor its internationalized Ks. ( 7173) Allowing a state to disregard an internationalized K in exercise of sovereignty would make the K imbalanced in violation of good faith principle. (Id., 91) Application of international law o Contra: Where a nationalizing state has concluded with a foreign company a contract that stems from the municipal law of that State and is completely governed by that law, the resolution will besubject to the provisions then in force o But here, for reasons stated supra, the agreement is internationalized. From 62, it seems there are two ways: A stabilized contract Placed under the aegis of international law (arbitration, reference to general principles). o In this latter case, the nationalizing measures carry international legal consequences. Problematizing internationalization of Ks State practice suggests that internationalization may merely indicate the willingness of the host state to accept the exercise of DP by the investors national state for Ks of sufficient magnitude. Thus internationalization does not necessarily entail the applicability of general intl law (as applies to treaties). Internationalization does not alter the basic principles of SR applicable to injury to aliens resulting from breach of K (articles of state responsibility say that a breach by an organ of a contracting state is not enough to breach international law) Breach of Contract as a Violation of IL
Assuming that breach is determined under the law governing the agreement, when will the breach be considered a violation of international law? R3FR 712(2) A state is responsible under IL for injury resulting from a repudiation/breach of contract w foreign national where: repudiation/breach is (i) discriminatory OR (ii) motivated by noncommercial considerations and damages arent paid; OR foreign national is denied adequate forum to recover for repudiation/breach OR is not paid comp. Comment 1: Breach may not violate IL where its based on (i) good faith dispute over the obligation, (ii) inability to perform, OR (iii) commercial considerations and accompanied by compensation. Supported by Guidelines on Treatment of FDI (1992) Competing views on stabilization clauses and sovereignty Kuwait v. Aminol (ILM 1982): Stabilization clause in 60-yr K was construed not to preclude nationalization in the absence of an express guarantee, in order to protect Kuwaits sovereignty. Prof. Dupuy: Acceding to contractual terms is in itself an exercise of sovereign and is binding on the state.
Reparation
Restitutio in integrum: Reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. [Chorzw Factory Case] Reparation is typically measured by the injury to the foreign national proximately caused by the host state. o Does not include monetary damages for injury to dignity/sovereign of national state except in exception circumstances. o Where the states delinquency was a failure to apprehend a private person who injured a foreign national, some tribunals have imposed derivative liability for effectively condoning the injury or awarded damages for grief/mistrust/lack of safety. o Personal injury Includes medical expenses, loss of earnings, pain & suffering, mental anguish Damages may be reduced where claimant has contributed to the injury o Loss of property Where expropriation would have been lawful if accompanied by fair comp., reparation = comp. (value at time of expropriation) + interest Where expropriation would have been unlawful regardless of comp. (e.g., discriminatory, contra treaty) then reparation = comp. + expectation damages (incl. profits that are non-speculative and were w/in contemplation of parties) o Costs of suit Individual claimants typically get costs. Governments typically cover cost of pursuing or defending their claims.
Bilateral Treaties
1. Two main types of treaties govern protections of private parties a. FCN Treaties cover broad range of trade relations in addition to investor protection i. US concluded 40 FCN agreements btw 1946 and 1966. ii. e.g., USPakistan Treaty of Friendship and Commerce 1. Each state must provide national or most-favored-nation status to citizens and companies of the other state. 2. Prohibition against discriminatory treatment 3. Prohibition against expropriation w/o public purpose or just comp. a. Intellectual property enjoys same protections as other property 4. Prohibition against exchange restrictions except as needed to effect legit. monetary policy, and w reasonable provisions for withdrawal 5. No express provisions governing states Ks w foreign nationals 6. No arbitration clause, but ultimate recourse to ICJ 7. Terminable by either party on notice iii. Sample bias complicates efforts to measure effectiveness of FCN treaties. Countries who have FCN treaties w US are already more likely to have positive trade relations. b. BITs focus primarily on protecting investors from non-commercial risks (e.g., expropriation w/o comp., discriminatory treatment, breach/repudiation of K by state) i. US BITs ensure free access of states investors to markets of the other state. ii. e.g., USArgentina BIT (1991) Death of the Calvo Doctrine? 1. Provides for dispute settlement through binding arbitration (under ICSID or UNICTRAL) (subject to 6-month waiting period and provided that the foreign national hasnt submitted the dispute for resolution under domestic law seems like disincentive to exhaust local remedies) 2. Prohibits direct and indirect (creeping) expropriation unless (i) for public purpose; (i) non-discriminatory; and (iii) accompanied by prompt, adequate, and effective comp. (Hull Formula) 3. Right to prompt review under host states internal law 4. Most-favored-nation treatment w.r.t losses resulting from armed conflict, civil disturbance, etc. 5. Prohibition against exchange restrictions w/o exemptions for bona fide monetary policy iii. BITS are not sufficiently widespread to create CIL on intl investment, but the process of negotiating bilateral treaties may lead to consensus around a multilateral regime similar to the WTO.
ASD may bar relief if FSIA doesnt preclude Based on questions of sovereign immunity, regards expropriations and other actions by a state o Exception provided by 2nd Hickenlooper Amendment: precludes application of ASD when taking of property violated genl principles of IL Helms-Burton Act o ASD doesnt apply to claims seeking recovery of property of US nationals expropriated by Cuba after 1959 Waiver of Immunity or Application of ASD o Foreign states may implicitly or explicitly waive ASD Enforceability of Intl Arbitration Award o Many investors seek intl arbitration clauses in their contracts with foreign states in order to get around these issues
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