INT’L PERSONALITY &

INT’L LAW PLAYERS

Prof David K. Linnan

USC LAW # 783

Unit Five

WHY IT MATTERSSEPARATION FROM MUNICIPAL LAW SYSTEM

1. Traditionally, idea only states as players under int’l law (e.g., “law of nations”), view

of personality as analogous to muni law capacity, except “players” can make law autonomously

2. Modern arguments about roles of int’l organizations both “governmental” (e.g.,

UN) and “non-governmental” (e.g., NGOs such as Amnesty International) couched in terms of

int’l personality & aspiring to be players

WHY IT MATTERSSEPARATION FROM MUNICIPAL LAW SYSTEM

(CONT’D)

3. Individuals’ role in public int’l law presents a further problem tied in

part to modern conceptions of human rights, posing issues less in terms of “players” in terms of making law, more in terms of rights &

obligations of individuals (so closer perhaps to muni law’s capacity concept)

[what is the relationship between technical views of international law and the issue whether it is better understood as law-making process versus substantive rules, seehttp://webjcli.ncl.ac.uk/articles4/gilbert4.html

http://www.reachingcriticalwill.org/legal/nwc/mon2pen.html]

WHO CARES?WHY DOES INT’L PERSONALITY MATTER, BEYOND DOCTRINE PER

SE?

1. Modern arguments reflect (in IR theory terms) underlying disappointment with state concept so indirectly view of int’l law itself (back to 9+ co-existing approaches re backgrounder)

[Off the record]

2. Practical issues starting in 1960s of how to conceptualize transnational or global players often more powerful than small states (e.g., large multinational corporations aka TNCs)

[Off the record]

3. On a technical level, personality or being a player still key but separate technical views from how int’l system operates re “globalization” (remaining conscious of hidden links)

[Off the record] [Options considered] [Opposing views]

STATE ELEMENTSSTATE AS TRADITIONAL MEASURE

OF PERSONALITY, REQUIRING

1. PERMANENT POPULATION2. DEFINED TERRITORY3. EFFECTIVE GOVERNMENT4. CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES

PERMANENT POPULATION (1)PERMANENT POPULATION NOT USUALLY AN ISSUE,

EXAMPLES

1. NO PERMANENT POPULATION IN ANTARTICA OR ON MOON, SO ASIDE FROM OTHER ISSUES DIFFICULT

TO CLAIM STATE STATUS

[Antarctic Treaty System]

2. WHAT OF DISPLACED POPULATIONS (E.G., PALESTINIAN REFUGEES) OR PROBLEM OF ETHNIC

DEFINITION (LINKED TO SELF-DETERMINATION ISSUES & DOES A PEOPLE HAVE A RIGHT TO

OWN STATE)

[Palestinian Refugees: Place Versus Identity]

SELF-DETERMINATIONQUERY:

RE POPULATION, CAN YOU HAVE A “PEOPLE” BUT NOT A “STATE,” AND HOW TO DEAL WITH THESE TECHNICALLY?

THIS TOUCHES ON SELF-DETERMINATION, WHICH WE SHALL RETURN TO IN THE NEXT UNIT, NOTING ONLY FOR NOW THE IMPLICIT CONNECTION WITH THE STATE QUESTION

[What is self-determination?]

DEFINED TERRITORY (2)QUERY:

CAN YOU HAVE A STATE WITHOUT DEFINED BOUNDARIES?

EXAMPLE OF ISRAEL & WHAT OF THE PALESTINEANS CURRENTLY

(WEST BANK)?

EFFECTIVE GOV’T (3)ARE RULES THE SAME FOR

1. ESTABLISHING ORDER IN FIRST PLACE (E.G., FINLAND FROM RUSSIA)

[Finland as difficult secession]

2. LOSING ORDER PREVIOUSLY ESTABLISHED (SOMALIA & FAILED STATES)

[diplomatic & military views of failed state problem]

3. SECESSIONS (E.G., AFRICAN SECESSIONS LASTING YEARS WHERE CENTRAL GOVT LOSES CONTROL OF PROVINCE)

[Nigeria’s Biafran secession]

STATE RELATIONS & CAPACITY (4)

CAN YOU BE A PLAYER ALONE?

CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES ENTAILS TWO VIEWS:

1. CONSTITUTIVE (REQUIRES FOREIGN STATES TO ACT, BUT ARGUABLE DUTY TO ACT)

2. OBJECTIVE (BASED ON INDEPENDENT STATUS, IDEA THAT FAILURE TO RECOGNIZE NOT EFFECTIVE,

EXAMPLE PRC PRE-1970 (US DID NOT RECOGNIZE) & ISRAEL PRE-1990s (SOME ARAB STATES IN PARTICULAR)

MODERN VIEW MORE OBJECTIVE, BUT MORE DETAIL NEXT UNIT

INT’L ORGANIZATIONSPublic international organization

1. Eg, UN itself & constitutive suborganizations created under treaty like FAO & WHO, or organs like UNICEF & High Commission for Refugees (UNHCR)

2. Typically, general assembly, smaller executive council & permanent staff

Non-governmental international organisations (NGOs)

1. Eg, Red Cross/Paling Merah (with functions under Geneva War Conventions) or environmental/labor organizations

2. But most NGOs have not been accorded status of international legal persons

NON-STATE ACTORSMultinational public enterprises

1. Bank for International Settlements in Basel as central banker’s bank

with mixed international and municipal law application

2. INTELSAT agreement w/o municipal law application, rather arbitration & generally accepted principles of law

INT’L ORG & PERSONALITYANALYZING ASPECTS

1. Is “personality” an inherent (or objective) attribute of international organizations, or does it depend on constituent instrument & powers expressly/implicitly granted to it?

2. Does “personality” imply certain fixed or minimal rights & duties, or do they derive from int’l organization’s powers & duties?

3. Whether denial of international personality by members states means entity cannot be regarded as an international organization under international law?

TRANSNATIONAL CORPORATIONS AS PLAYERS?

WHO WANTS TNCs INSIDE THE SYSTEM, DOES PERSONALITY ANALYSIS APPLY?

1. Traditional bugaboo as “exploitive” neocolonialism & idea idea of private entities more powerful than countries

2. Concerns about economic & political power (FCPA background), labor groups due to concerns about “exporting jobs,” consumers due to concerns over goods like GMO, now generically anti-globalisation folks

3. Traditional analysis, corporations have nationality of incorporation state and rely on it for diplomatic protection (Barcelona Traction infra)

CONTROLLING TNCsTNCs, CONTROL VIA MULTILATERAL

JURISDICTION OVER PERSONALITY

1. Idea of special “international charter” approach

2. Idea of “code of conduct” approach (TNCs wanted eventually, since responsibilities & external influence under # 1)

 3. Violent anti-globalization protests indirectly

anti-TNC

INDIVIDUALS AS PLAYERS?SOURCING RIGHTS & OBLIG. VERSUS PERSONALITY

1. Traditional view only states are players, individuals covered by “diplomatic protection” (Eg, Mavromatis Case, PCIJ 1924), with distinction of in who or what resides the right

2. But traditional view of individual responsibility under laws of war

3. Anti-terrorism Conventions with applicability to individuals (analogy to “piracy” as offense against law of nations)

4. Now modern issues re “human rights” as law (natural rights? UN Charter creation?)

NATIONALITY CONCEPTNATIONALITY & DIPLOMATIC PROTECTION TRADITION

1. 1930 Hague Convention view that States must determine own nationals subject to broad principles (possibility of conflicts)

2. Traditional link between individual & State (inclusive/exclusive)

3. Naturalization by waiver concepts such as purchase of real estate, marriage or residence

4. Rules differ, but basic pattern of parentage or birth location

NATIONALITY CONSEQUENCES

RELATIVE CONCEPT, CONSEQUENCES IN OTHER SPHERES

1. Right of residence

2. Right to work

3. Right to state of nationality protection

4. Right to 3-P country treatment as national (eg, neutrality in conflicts, etc.)

5. Practical effects of deprivation & limitations

NOTTEBOHMNOTTEBOHM CASE (Lichtenstein v Guatamala, ICJ 1955)

German national in residence in Guatamala since 1905 except vacation & business trips to Europe, in 1939 was naturalized in neutral Lichtenstein with residency waiver; 1941 US goes to war against Germany, Nottebohm deported & interned as enemy alien in US with later Guatamalan confiscation of property & refusal to readmit

Does Guatamala have a duty to recognize Lichtenstein nationality?

SOCIAL FACTS ISSUENOTTEBOHM (CONT’D)

State cannot assert its protection for a person deemed a national unless person has a genuine connection

“Juridical expression of a social fact,” tenuous connection here

DUAL NATIONALITYCOMPETING STATE JURISDICTION?

US ex rel Merge v Italian Republic (Concil. Comm’n 1955)

US-born person married Italian national & under Italian law acquired Italian nationality; she went to Japan with spouse, where she was registered as US citizen with US consulate, later brought claim for war damages on loss of Italian property based on claim was American citizen

1. What is dual nationality & why does it exist?

2. What is test with dual nationalities in apparent conflict?

PREDOMINANT NATIONALITYUS EX REL MERGE (CONT’D)

1. 1930 Hague Convention dual nationality view that a State could not assert diplomatic protection against another State claiming the affected individual as its own national

2. 1930 Hague Convention 3-P country rule determining “effective nationality” based on habitual and principal residence, or where closest connection

3. State of predominant nationality can assert protection against state with inferior nationality claim, “dominant nationality” ultimately physical residency & professional life for head of family

JURISTIC PERSONSWHAT IS THE NATIONALITY OF JURISTIC

PERSONS?

Barcelona Traction (Belgium v Spain, ICJ 1970)

Barcelona Traction was incorporated in Canada with project in Spain, owned by Belgian shareholders; Spain allegedly violated Barcelona Traction’s concession but Canada did not wish to assert diplomatic protection so Belgium wanted to do so: only State of incorporation not State of shareholders entitled

NATIONALITY & INVESTMENTPROTECTION OF ECONOMIC INTERESTS OF FOREIGNERS

1. Foreign investment problem of countries requiring investment to be in locally incorporated subsidiary

2. Rich countries reject Barcelona Traction rule, often seek to overturn it in bilateral FCN or investment treaties

3. Problem within regional groupings such as NAFTA or AFTA guaranteeing national treatment to other member countries’ citizens; do you go by state of incorporation, or by state of ultimate beneficial ownership in conflict with Barcelona Traction?

4. Breaking down personality and related concepts like participation/diplomatic protection via mechanisms like NAFTA Chapter 11 Investor-Foreign State arbitrations