Sie sind auf Seite 1von 47

SIIL Finals Reviewer ○ Why would there be such change in UK’s constitutional

framework in this case? After the UK joined the EU,


TOPIC 1: Treaty Withdrawal Parliament had enacted legislation establishing EU law as a
source of domestic law with overriding status.
Withdrawing from the TEU would remove this source of
domestic law. Such a fundamental change in the
Case 1: Miller v. Secretary of State (BREXIT) constitutional arrangements of the UK required
parliamentary approval.
● Second reason why treaty withdrawal requires legislative
Facts: After a majority of voters supported ending the UK’s membership in the
EU, the UK executive announced its intention to trigger the withdrawal provision – authorization: loss of certain individual rights vested in domestic
Article 50 – of the Treaty on European Union (TEU). However, this decision was law that would be removed by virtue of the withdrawal
challenged in a judicial review proceeding, in which the applicants argued that ● Note that acte contraire theory was not used. In short, the
legislative approval was necessary to empower the executive to do so. requirement of parliamentary approval of withdrawal did not turn on
the fact that Parliament had ratified the relevant treaties but, rather,
Issue: ​Does the executive branch have unilateral power to withdraw from TEU? on the impact ​that withdrawal would have on the content of
NO, the treaty withdrawal can only be effected with legislative authorization. domestic law
● Commentary by an assigned article: Miller case can apply to
Ruling: withdrawal from treaties other than the TEU, though the r​ange of
such treaties will likely be narrow​, comprising treaties the
● The UK does not have written regulation on treaty ​withdrawal ​(but withdrawal from which will result in a ‘fundamental change’ to
it has on treaty making), nor had conventional regulation developed domestic law or the removal of ‘vested rights’ of individuals.
through practice. Withdrawal from such treaties will require parliamentary approval.
● Traditionally, treaty-​making (case here is withdrawal) capacity has Otherwise, the executive can, according to domestic law, exit
been considered to be part of the executive prerogative and, thus, treaties without the involvement of the legislature. In principle, this
can be exercised without legislative approval, though there is a is ​not a sui generis rule concerning only withdrawal from the EU,
requirement of parliamentary notice prior to treaty ratification. but its application is likely to be limited given the high threshold
Treaty ​withdrawal is equally part of the prerogative, and therefore established by the Court for the need for parliamentary approval of
in principle can be ​exercised unilaterally​ by the executive. treaty withdrawal. Further, it is likely that the judiciary will have a
● Exception (so legislative authorization would be needed) and the significant role to play in future cases defining the boundaries of this
first reason why treaty withdrawal requires legislative authorization: rule.
Instances where treaty withdrawal would result in a ​change to the
Case 2: Democratic Alliance vs. Minister of IR (South Africa’s withdrawal
constitutional framework​ in the UK, ​which is the case here
from the ICC)

1
Facts: A notice of withdrawal is the equivalent of ratification, which requires prior
This case involves the withdrawal of South Africa from the Rome Statute of the parliamentary approval in terms of s 231(2). The act of signing a treaty and the act
International Criminal Court (ICC). It stems from its refusal to arrest and surrender of delivering a notice of withdrawal are different in their effect. The former has no
Sudanese President al-Bashir to the ICC, who visited the country for an African direct legal consequences, while the latter has concrete legal effects in
Union summit. al-Bashir is accused of serious international crimes (war crimes, international law, as it terminates treaty obligations, albeit on a deferred basis in
crimes against humanity, and genocide) all related to the Darfur region of Sudan. the present case.

The South African government, through the Minister of International Relations, It is trite that where a constitutional or statutory provision confers a power to do
signed a notice of withdrawal and deposited it with the Secretary-General of the something, it necessarily confers the power to undo it as well. Since the power to
UN, in accordance to Art. 127(1) of the Rome Statute. This was the sole act of the bind the country to the Rome Statute is expressly conferred on parliament,
national executive and without prior parliamentary approval. The Minister also therefore, it must be parliament which has the power to decide whether an
tabled in parliament a bill repealing the Implementation of the Rome Statute of the international agreement ceases to bind the country.
International Criminal Court Act 27 of 2002 (Implementation Act), which is the
domestic law giving effect to the Rome Statute in South Africa. Here, the national executive did not have the power to deliver the notice of
withdrawal without obtaining prior parliamentary approval and repealing the
Democratic Alliance, a political party and the largest minority party in parliament, Implementation Act. Thus, the sole act of the national executive violated s 231(2)
seeks to declare such notice of withdrawal of the executive as unconstitutional. On of the Constitution, and breached the separation of powers doctrine enshrined in
the other hand, government respondents argue that there is no explicit provision in that section.
the Constitution which requires prior parliamentary approval in terms of
withdrawing from an international agreement. Also, the Court declined to pronounce on the substantive merits of South Africa’s
withdrawal – being a decision which is policy-laden and one residing in the
Issues:​ heartland of the national executive in the exercise of foreign policy, international
Whether it is constitutionally permissible for the national executive to deliver relations and treaty-making, subject to the Constitution.
a notice of withdrawal from an international treaty without (a) prior
parliamentary approval (primary issue); and (b) repealing the domestic law In sum, the notice of withdrawal and the decision to deliver the notice of withdrawal
giving effect to such treaty (ancillary issue)? – NO are unconstitutional and invalid. They are ordered to revoke the said notice of
withdrawal.
Procedurally, the decision by the national executive to deliver the notice of
withdrawal of South Africa from the Rome Statute of the ICC without prior
parliamentary approval is unconstitutional and invalid. So is that decision, without it
being preceded by the repeal of the Implementation Act. Treaty Withdrawal (based on the article)

In construing s 231 of the Constitution (see Ratio for its content), which governs So with the discussion of the case studies, the pressing question is: what happens
the manner in which international agreements are made binding on South Africa, it if a state withdraws from an international treaty in a manner that complies with the
is important to note the following: applicable international legal requirements, but violates its domestic rules on treaty
withdrawal? Will such a treaty withdrawal still take effect in international laws.

2
This was the main question that the drafters of the VCLT debated and discussed. Accordingly, there are different ways in which the balance between these two
Strong disagreement arose between those who suggested that international legal principles can be struck. Thus, there are 2 main rival theories that aims to balance
authority was vested solely in the executive, regardless of domestic constitutional or favors one over the other. And these are:
rules, and those who insisted that international law must protect domestic and,
particularly, democratic – allocation of internal treaty-making authority. However, 1. Constitutionalist Theory ​- also known as the theory of international
the discussion only addressed this question in relation to the joining of a treaty, relevance, asserts that only domestic law can determine which state
neglecting the context of treaty withdrawal. Thus, we must first look into the representative has the authority to bind the state to international treaty
analysis of the VLCT approach in joining a treaty that may provide insights to the obligations and, therefore, it favours the principle of sovereignty.
exercise of treaty making capacity to withdraw from treaties.
If an actor other than that empowered by domestic law attempts to
​Role of Domestic Law in Joining treaties undertake international obligations on behalf of the state, this cannot be of
any legal effect, as that actor has no authority to represent the state.
The proper relationship between international and domestic legal requirements Thus, rules of internal law are argued to be incorporated in the
when joining a treaty has been the subject of debate and disagreement for many international law.
years. There are two main rival theories that revolves such question:
Constitutionalist theory​ and ​Internationalist theory​. It protects the state’s sovereign determination of the allocation of
treaty-making competence and encourages democratic decision-making
In relation to joining a treaty, the Vienna Convention on the Law of Treaties (VCLT) within the sphere of the state’s international relation. ​Thus, the primary
drafters considered that international law must effectively balance two key result of the constitutionalist theory would be the international
imperatives in relation to states’ consent to join treaties: the ​security and invalidity of a treaty consented to in violation of domestic rules. ​An
efficiency of treaties ​and ​state sovereignty​. example of this is when if the executive failed to obtain the constitutionally
required legislative authorization for ratification, it follows that the treaty is
1. Principle of treaty security - emphasizes the need for clarity in the null and void.
international legal requirements for treaty making so that states may know
when they have undertaken binding obligations. It prioritize the continuity of Consequently, this theory prioritizes state sovereignty over treaty security.
the treaty and its binding effect Two well known rapporteurs support this theory namely: Brierly and
Lauterpacht. ​Lauterpacht was of the view that the constitutionalist
- Thus, it suggest that in joining in a treaty, States must be able to rely on theory must be tempered by the ‘weighty character’ of
the ostensible authority of the organs accepting binding obligations. Thus, considerations in favour of the security of treaties​. Thus, Lauterpacht
the treaty must be binding amongst them. proposed what he described as a compromise between the
constitutionalist and internationalist positions, with the constitutionalist
2. Sovereignty principle ​- requires respect for the state’s internal allocation of approach being the default, subject to (perhaps characteristically)
treaty-making authority and, ‘forbid[s] the acceptance of the view that a state elaborate exceptions:
may become bound, in matters affecting its vital interests and in others, by
acts for which there is no warrant or authority in its own law’ 1. The treaty undertaken in violation of constitutional limitations
would be voidable (not void) upon invocation only by the state
whose consent was unconstitutionally obtained

3
2. That the contracting state would be estopped from invoking the are acting in compliance with their own domestic law; if they fail to do so,
invalidity of its consent if it had failed to do so over a ‘prolonged that is a matter for internal resolution, not a matter for international law.
period’ or had ‘acted upon or obtained an advantage from’ the
treaty Third, it was argued to be too onerous to expect states to obtain the
knowledge of foreign constitutional law that would be necessary to know
3. A state that successfully invoked the invalidity of its consent on whether treaty consent has been validly exercised should the
this basis must compensate other treaty parties for any damage constitutionalist approach be taken. Fourth, it is suggested that it would
resulting from the invalidity of the treaty, if the other parties were constitute unlawful interference in the state’s domestic jurisdiction to query
not aware of the relevant constitutional limitation. whether the state’s representatives have acted in compliance with
domestic law in purporting to join a treaty. Finally, the constitutionalist
4. And, in cases where the unconstitutionality was the subject of a theory would allow states to knowingly enter treaties in violation of their
dispute, this must be submitted to the International Court of domestic law and later opportunistically deny the validity of their
Justice (ICJ) or other international court for resolution. obligations, relying on this violation of domestic law.

Thus, according to Lauterpacht, only a violation of a constitutional According to Fitzmaurice’s draft articles (he is a supporter of
provision, not of other domestic law provisions, could lead to internationalist theory), any treaty consented to by, or with the approval of,
invalidity of treaty consent and only if the state had acted promptly the state executive was binding on the state in the international sphere,
and in good faith in invoking such a violation. regardless of domestic rules on treaty making, without exception.

2. ​Internationalist Theory – also known as evidence theory. ​Under this, On the other hand, Waldock’s reports as special rapporteur formed the
theory, International law itself establishes uniform rules determining the state basis for the draft articles ultimately adopted by the ILC as the draft
authority that can validly exercise the state’s consent for the purposes of Convention on the Law of Treaties and subsequently adopted as the VCLT
international law, favouring the principle of treaty security. Thus, if consent to a in 1969. Waldock proposed a less strident version of the internationalist
treaty is expressed by that authority – namely, the state executive – in theory than that of Fitzmaurice, conceding ‘the importance of constitutional
compliance with the rules of international law​, the state cannot invalidate limitations on treaty-making power’. His first draft contained the following
that consent by pointing to a violation of its domestic law rules​. ​The assumptions:
domestic rules are simply irrelevant to the binding force of a treaty on
the international plane​. 1. Treaties concluded by certain state representatives – namely, the head
of state, head of government, and foreign minister, or other
States placed their confidence in the other government, provided that it representatives authorized by full powers – were internationally valid,
was effectively exercising power. In so doing, they applied the rule of regardless of the provisions of domestic law.
international law that a state could not invoke its internal law to establish
the invalidity of a treaty. The internationalist theory is defended on the Waldock proposed that a state that had joined a treaty in a manner that
basis of both principle and practicality. First, as explained above, is the violated its constitutional law be entitled to revoke its consent with
need to protect the security of treaty relations. Second, it is argued that agreement of the other treaty party/parties, if the treaty was already in
states are obliged to act in good faith in their treaty relations. It is therefore force. If the treaty was not in force, it was proposed that the state be
the responsibility of state representatives themselves to ensure that they

4
entitled to retract its consent simply upon notification to the depositary or a state representative with ostensible authority to do so. Such ostensible
other treaty party/parties. authority is regulated by a separate provision on ‘full powers’, which is
Article 7 of the VLCT which provides that:
The VCLT Compromise
Article 7:
Waldock’s moderated internationalist position found majority agreement in the
ILC’s position, though significant changes to his formulation resulted from 1. A person is considered as representing a State for the purpose of adopting or
subsequent discussions in the commission. Draft Article 43 was proposed by the authenticating the text of a treaty or for the purpose of expressing the consent of
ILC: ‘A state may not invoke the fact that its consent to be bound by a treaty has the State to be bound by a treaty if:
been expressed in violation of a provision of its internal law regarding competence
to conclude treaties as invalidating its consent unless that violation of its internal (a) he produces appropriate full powers; or (b) it appears from the practice of the
law was manifest. States concerned or from other circumstances that their intention was to consider
that person as representing the State for such purposes and to dispense with full
However, this was subject to further extensive debates and arguments. Thus, two powers.
main amendments were introduced:
2. In virtue of their functions and without having to produce full powers, the
1. The category of relevant domestic law was restricted to include only internal following are considered as representing their State:
laws ‘of fundamental importance’, indicating that violations of rules of minor
importance, such as technical formalities of ratification, did not vitiate treaty (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the
consent. purpose of performing all acts relating to the conclusion of a treaty; (b) heads of
diplomatic missions, for the purpose of adopting the text of a treaty between the
2. To allay concerns about the vagueness of the manifest violation exception, a accrediting State and the State to which they are accredited; (c) representatives
definition of the concept was included. accredited by States to an international conference or to an international
organization or one of its organs, for the purpose of adopting the text of a treaty in
Thus, the final text was adopted as Article 46 of the VCLT, which reads: that conference, organization or organ.

1. ​A state may not invoke the fact that its consent to be bound by a treaty Thus, it provides that authority of heads of state, heads of government, and foreign
has been expressed in violation of a provision of its internal law ministers to bind their state to a treaty without exception ‘by virtue of their
regarding competence to conclude treaties as invalidating its functions’, and other representatives to do so upon production of full powers.
consent unless that violation was manifest and concerned a rule of States are therefore entitled to rely on consent given by these representatives,
its internal law of fundamental importance. 
 regardless of any consideration of domestic legal requirements, favouring the
principle of treaty security. Art 46 also provides for limited exception, recognizing
2. A
​ violation is manifest if it would be objectively evident to any state the importance of constitutionalist concerns, that if the consent was given in
conducting itself in the matter in accordance with normal practice ‘manifest violation’ of an internal rule of fundamental importance concerning the
and in good faith. 
 competence to conclude treaties, it was voidable.

Thus, Article 46 establishes the internationalist approach as the default In order to be manifest, the violation must be objectively evident’ to any state
position in international law, assuming the validity of treaty consent given by acting normally and in good faith – circumstances in which the ILC agreed that a

5
‘State could not legitimately claim to have relied upon a consent given. ​Finally, It has been established that there is a narrowly defined, but significant,
Article 46(1) makes clear that it is only the state whose domestic law was requirement in international law to comply with domestic law when joining treaties
violated that can invoke this basis for invalidity. in the form of the ‘manifest violation’ exception to the validity of treaty consent. In
contrast, in the following section, it will be shown that international law currently
Thus, two basic elements in Article 46 are considered: does not explicitly provide such a role for domestic legal requirements when states
withdraw from treaties. Rather, it appears that a strictly internationalist approach is
1. Nature of the violation of domestic law - the violation of domestic law must applicable in the context of treaty withdrawal.
be so obvious as to make it impossible for another state to rely on the given
consent in good faith. ​Thus, it must be manifest from the perspective of Established International Law Requirements for Valid Treaty
the other States.
Withdrawal

The VCLT sets out several grounds on which states are entitled to exercise a right
However, this is somewhat problematic since the States has no duty to be aware of withdraw from treaty. According to Article 67, an instrument of withdrawal must
of other state’s internal laws. The rule will be considered to be sufficiently be in writing and must be signed by the head of state, head of government, or
publicized if other treaties parties have been given a ‘specific warning’ of the minister of foreign affairs. If signed by another state representative, that
domestic limitations on treaty-making capacity. Otherwise, the domestic rule representative may be requested to produce full powers. If these procedural
limiting the authority to conclude treaties must be the subject of common requirements are not satisfied, the instrument of withdrawal will not take effect
knowledge. In addition, in order for it to be reasonable to expect other states to be under international law. However, unlike the provisions on joining treaties​, these
aware of the violation, ​the rule in question must be clear at the time that the procedural requirements do not contain an equivalent to the manifest
state gave its consent to be bound to the treaty. violation exception in Article 46 of the VCLT nor any other reference to
domestic legal allocation of treaty withdrawal authority.
2. Character of the violated rule - the rule violated must be ‘of fundamental
importance’ and concern the capacity to conclude treaties. It is not clear which As can be observed, only a very few number of commentators address the
rules other than constitutional rules are qualified as being of fundamental question of the international legal impact of domestic legal restrictions on the
importance to the domestic legal system in question. These fundamental rules executive’s authority to withdraw from treaties, and, among those who do, there is
can be procedural or substantive and can be codified or based on practice. nearly universal agreement that domestic legal requirements are irrelevant to the
international validity of a state’s treaty withdrawal. Apart from these few authors,
It is largely accepted that this provision now represents customary the widespread state practice and commentary apparently assumes the
international law. As such, it has been accepted that, in the context of international validity of instruments of withdrawal duly signed by authorized state
joining treaties, the violation of domestic law can invalidate treaty consent representatives. In addition there is no mention of the domestic authority to
under international law, upon invocation by the state, even if given by withdraw from treaties appears to be made in state’s instrument of withdrawal, nor
representatives with ostensible authority to bind their state under do treaty depositaries appear to inquire into such authority.
international law.
Thus, it can be considered that the authority of the executive to withdraw the state
The Role of Domestic Law in the International Law of Treaty Withdrawal from treaties in Article 67 of the VCLT is, ​prima facie,​ absolute in international law,
unlimited by any checks that may exist in domestic law. Such absolute authority
would mean that, while a violation by the state’s executive of the requirement to

6
obtain legislative approval when joining a treaty may invalidate the state’s treaty bound by a treaty, or ​for accomplishing any other act with respect to a treaty​’. This
consent, the very same violation would be irrelevant in the case of treaty definition clearly includes acts concerning both the conclusion and termination of
withdrawal. treaties. Thus, the restriction of the powers of those authorized to act on behalf of
their state by the Article 46 manifest violation exception should apply to the full
Analogical Application of the Manifest Violation Exception to Treaty Withdrawal range of treaty acts that these representatives are potentially capable of executing,
as defined by Article 2 of the VCLT. ​As such, the authority of those empowered
VCLT provisions do not expressly contain any limit on the authority of the state’s by Article 67 to withdraw from a treaty should be limited in the same manner
international representatives to withdraw from treaties. Such unqualified authority by the Article 46 manifest violation exception as those empowered by Article
would enable the executive to ignore any domestic limitations on its treaty 7 to join a treaty.
withdrawal powers. As noted above​, the power to join and leave treaties are
two aspects of the same treaty-making capacity of the state. Thus, as
international law considers that compliance with domestic legal requirements is
relevant to the international validity of the expression of the state’s consent to be b. Normative principles justifying the application of the manifest violation
bound by a treaty, this should also be the case for the decision to end that exception to treaty withdrawal - ​VCLT drafters sought to balance two key
consent. principles normatively underpinning the law on treaty consent: respect for state
sovereignty and the security of treaties. In relation to the international law on
As such, the author moves that Article 46 of the VCLT should be interpreted to concluding treaties, the balance was struck advancing the principle of treaty
apply analogically to state representatives’ power to withdraw from treaties in security, with a limited exception to ensure respect for the state’s sovereign
international law. Thus, a manifest violation of an internal rule of fundamental allocation of its treaty-making competence. ​In the context of treaty
importance should potentially invalidate a state’s treaty withdrawal internationally withdrawal, however, the VCLT currently tips the scale in favour of the
as well as domestically. principle of treaty security, with no counterbalancing to account for
sovereignty concerns
a. Textual Interpretation – ​Despite the absence of an explicit requirement, In its
commentary on the final draft articles, the ILC ‘considered that the rule This unjustified overemphasis on treaty security can be corrected through the
concerning evidence of authority to denounce, terminate, etc., should be proposed expansive interpretation of the manifest violation exception, bringing the
analogous to that governing “full powers” to express the consent of a state to two principles into appropriate balance in both joining and leaving treaties.
be bound by a treaty withdrawal, The power to terminate a treaty is just as
much a part of the treaty-making power of the state as that of concluding a. State Sovereignty in treaty withdrawal - It is apparent that
treaties. Thus, the rules in joining the treaty should also be applicable in the the importance of respecting the state’s exercise of its
treaty withdrawal. sovereign right to allocate treaty-making competence applies
equally to the acts of joining and leaving treaties
This interpretation is supported by the VCLT’s definition of the treaty acts that
those vested with full powers may carry out on behalf of their state. As noted As noted above​, the power to join and leave treaties are two
above, Article 7 sets out the requirement of production of full powers in the context aspects of the same treaty-making capacity of the state​. Thus,
of joining treaties, while Article 67 does so in relation to treaty withdrawal. The there is no justification for giving international legal weight to the
definition of ‘​full powers’ in Article 2 provides that: ‘“Full powers” means a state’s sovereign allocation of its treaty-making power to limit the
document emanating from the competent authority of a state designating a person executive’s unilateral authority when a state joins a treaty, but
or persons to represent the state ... for expressing the consent of the state to be ignoring the very same concerns when the state leaves the treaty.
7
It is furthermore clear that a state’s sovereign choice to determine unrestricted international legal authority to the executive to
its international and domestic legal and policy commitments is withdraw from treaties does not best serve the principle of
made just as much through leaving existing treaties as joining new treaty security; if anything, appropriate limits on the
ones – as is increasingly emphasized by referenda, judicial review executive’s international authority to withdraw uphold the
actions and electoral campaigns focused on leaving treaties to principle
which the state belongs.
Application
Thus, when joining treaties, constitutional rules are protected by a
variety of procedural requirements that will ensure, or at least With the move to analogously apply Art 46 to Art 67, should this be accepted, a
encourage, the state to go back to its own internal processes for treaty withdrawal that is carried out by the state’s executive, vested with
approval of the act. In contrast, when withdrawing from a treaty, representative authority under Article 67 of the VCLT and which complies with the
international law has not established any such procedures. applicable international legal requirements, may nonetheless be invalidated under
international law if done in manifest violation of a rule of domestic law.
b. Security of treaties in treaty withdrawal​- The lack of clarity
of domestic legal requirements and the onerous burden it In normal practice when joining treaties there is no duty on states to familiarize
would impose on states to require that they know the themselves with the domestic law of others states, and so the ‘fundamental rule of
treaty-making rules of foreign states ‘might become a source internal law’ has to be the subject of a specific warning to other states or
of endless complications and disputes’. ​Therefore, exceptionally well publicized in order to lead to a successful invocation of Article
international law must establish, as the default position, 46. In the context of treaty withdrawal, however, the circumstances may make it
that treaty consent given by those with ostensible more reasonable to expect a state to inquire into the domestic rules of its treaty
authority under international law must have binding partners and thus increase the likelihood of a violation of domestic law being
international legal force. These same considerations hold objectively evident.
true for the context of treaty withdrawal.
In treaty withdrawal, all treaty parties may have a significant interest in maintaining
However, while the executive is given ostensible authority to bind the treaty’s membership and would arguably be the normal practice for all states
their state when joining treaties, limited by the manifest violation parties to enquire into the domestic legality of the act of treaty withdrawal, given
exception, the executive is given absolute international legal the serious effect it may have on their own interests.
authority to withdraw their state from treaties. This overemphasis
on the principle of treaty security in relation to treaty withdrawal The author suggests here is not that there is a general duty on states to know the
powers, when compared to powers to conclude treaties, cannot be domestic requirements of treaty withdrawal for their treaty partners. Rather, where
justified the loss of an individual member state would have a significant impact on the
interests of the other treaty parties – as in the UK’s withdrawal from the EU – it
Thus, recognizing a requirement to comply with domestic law would be reasonable to expect states to examine the domestic legality of the state
when withdrawing from treaties would favour this crucial aspect of party’s withdrawal along- side the applicable international legal requirements.
the principle of treaty security since this would provide an
additional barrier to withdrawal – the failure to comply with which Thus, the bottomline is that it is the position of the author that States can only
would mean that the state’s withdrawal could be invalidated, withdraw from a treaty if a manifest violation as provided in Article 46 applies.
protecting the security of the treaty agreement. Hence, giving
8
First Colloquium instrument the Chief Executive so desires. As previously
mentioned, the Senate has a role in ensuring that treaties
1st Submission: The Philippines’ withdrawal by note verbale from the Rome or international agreements the President enters into, as
Statute in the ICC is not valid, binding and effectual. It did not follow the contemplated in Section 21 of Article VII of the
Constitution Constitution, obtain the approval of two-thirds of its
members.”
- Article VII, Sec 21 of the 1987 Constitution: No treaty or international - “This left a large margin of discretion that the President
agreement shall be valid and effective unless concurred in by at least could use to bypass the Legislature altogether. This was a
two-thirds of all the Members of the Senate. departure from the 1935 Constitution, which explicitly
- It did not follow the two step procedure that was taken by the government gave the President the power to enter into treaties only
to validly accede to the Rome statute with the concurrence of two-thirds of all the Members of
- Acte contraire principle:​ accession and withdrawal are parallel actions the Senate. The 1987 Constitution returned the Senate's
requiring parallel procedure. power and, with it, the legislative's traditional role in
- The procedure was: accession, then deposit with the UN under foreign affairs.”
Article 125 of the Rome Statute - Bayan v. Zamora
- Since the law does not give the President the power to withdraw, it does - “In this sense, the Senate partakes a principal, yet
not exist. There needs to be an express grant giving the president the delicate, role in keeping the principles of ​separation of
power to unilaterally withdraw. powers and of ​checks and balances alive and vigilantly
- Democratic Alliance Case: “Absence of a provision in the ensures that these cherished rudiments remain true to
Constitution or any other legislation of a power for the executive to their form in a democratic government such as ours. The
terminate international agreements is therefore confirmation Constitution thus animates, through this treaty-concurring
- Miller Case power of the Senate, a healthy system of checks and
- History, presidential treaty-making powers, and jurisprudence show that balances indispensable toward our nation’s pursuit of
executive decision making powers are not unlimited. political maturity and growth.”
- Democratic Alliance Case, Miller Case
- Pimentel v Executive Secretary 2nd Submission: Executive cannot unilaterally withdraw from a treaty
- The President ratifies, not the Senate without violating constitutional bounds. Separation of Powers, Checks and
- “​Nonetheless, while the President has the sole authority to Balances
negotiate and enter into treaties, the Constitution provides
a limitation to his power by requiring the concurrence of - The parallel two-step procedure countervailing the Executive’s unilateral
2/3 of all the members of the Senate for the validity of the withdrawal from a treaty is consistent with the Constitutional doctrines of
treaty entered into by him. ​” the separation of powers and shared responsibility
- Saguisag v. Ochoa - Supermajority requirement for Senate concurrence indicates key role
- “Clearly, the power to defend the State and to act as its placed on the shoulders of the Upper House (the global trend too goes for
representative in the international sphere inheres in the shared responsibility)
person of the President. This power, however, does not - Angara v. Electoral Commission: “But it does not follow from the
crystallize into absolute discretion to craft whatever fact that the three powers are to be kept separate and distinct that

9
the Constitution intended them to be absolutely unrestrained and 3rd Submission: Even assuming the senate concurrence is not a
independent of each other. The Constitution has provided for an prerequisite for a valid withdrawal from a treaty, the executive does not have
elaborate system of checks and balances to secure coordination cogent factual or legal basis for the ICC withdrawal other than the
in the workings of the various departments of the government. For President’s whimsical and arbitrary decision
example, the Chief Executive under our Constitution is so far
made a check on the legislative power that this assent is required - Complementarity requires mechanisms and procedures of preliminary
in the enactment of laws.” examination by the ICC-OTP to assure effective remedy for grave
- Executive Deposit of the instrument of ratification is done only after the violations of fundamental rights recognized in both constitutional law and
decision of the Senate: after the signature of the treaty and at the stage of international law
ratification, the exercise of discretion properly pertains to the Senate as - Hierarchy principle. ICC always steps in when there is inability or
the organ that concurs in the execution of the treaty unwillingness to prosecute crimes subject to the jurisdiction of ICC
- Subsequent act of executive of depositing the instruments of ratification or
accession, which ever is the case, is only a ​ministerial act t​hat is done to TOPIC 2: Intl Human Rights Law ETOs TNCs
make the Senate’s separate action effective in the international sphere.
This is already law as it is the President’s duty to enforce a law-- can be
done through a mandamus suit. Case 1: Barcelona Traction
- Discordant result: the unilateral withdrawal faces constitutional and legal
acts that the executive has no power to effect on its own. Under the Summary:
Constitution, the president is the chief enforcer of laws.
- Gonzales v Hechanova: “He may not defeat legislative Belgium brought its claim (which arose out of the adjudication bankruptcy in Spain
enactments that have acquired the status of law, by ​indirectly of Barcelona Traction, a Canadian company) before the Court on June 19, 1962.
repealing the same through an executive agreement ​providing for Its object was to seek ​reparation for damage ​alleged by Belgium to have been
the performance of the very act prohibited by said laws​.” sustained by Belgian nationals, shareholders in the company, as a result of acts
- Saguisag on: Treaties v. Executive Agreements: said to be contrary to international law committed towards the company by organs
- Executive agreements must proceed from an express or of the Spanish State. The Court found that ​Belgium lacked jus standi ​to exercise
implied authorization under Constitution, statutes or diplomatic protection of Belgian shareholders in the Canadian company with
treaties and do not create new international obligations, respect to measures taken against that company in Spain, and rejected Belgium's
otherwise it is void from the beginning claim. It is Canada, the state of nationality of the corporation, which has the cause
- Treaties are superior to executive agreements: lex of action.
posterior derogat priori
- Both treaties and Executive Agreements are subject to the Facts
supremacy of the Constitution - The Barcelona Traction, Light and Power Company, Limited
- How about the VFA, is it a treaty? If EA then the - Incorporated in 1911 in Toronto (Canada), where it has its head
president can unilaterally withdraw it. If treaty then it has office.
to go to a Senate. If it ​went through the senate, is it - For the purpose of creating and developing an electric power
determinative of the nature of the document? production and distribution system in Catalonia (Spain) it formed a
number of ​subsidiary companies​, of which some had their

10
registered offices in Canada and the others in Spain. (subsidiary - The Court rejected the 1st and 2nd objections and joined the ​3rd and 4th
companies supplied the major part of Catalonia's electricity to the merits.
requirements) - The ​3rd preliminary objection of the Spanish Government was
- It issued several series of ​bonds​, principally in sterling, which to the effect that the Belgian Government lacked capacity to
were serviced out of transfers to Barcelona Traction effected by submit any claim in respect of wrongs done to a Canadian
the subsidiary companies operating in Spain. company, even if the shareholders were Belgian.
- In 1948, Spanish holders of recently acquired Barcelona Traction sterling - The ​4th preliminary objection was to the effect that local
bonds petitioned that court of Reus (Province of Tarragona) for a remedies available in Spain had not been exhausted.
declaration adjudging the company bankrupt​, on account of failure to pay - The case submitted to the Court principally concerned three States,
the interest on the bonds. Belgium, Spain and Canada, and it was accordingly necessary to deal with
- A judgment was given declaring the company bankrupt and ordering the a series of problems arising out of this triangular relationship.
seizure of the assets of Barcelona Traction and of two of its subsidiary Issue​: ​Does Belgium have standing to represent Belgian stockholders in a
companies. Canadian company in a claim against the Spanish government? No.
- Proceedings were brought without success in the Spanish courts by
various companies or persons. Ruling
- The case was submitted to the International Court of Justice. Rights of the corporation vs. rights of the shareholders
- International law includes rules generally accepted by municipal systems.
Proceedings before the International Court and the Nature of the Claim In municipal law, there is a firm distinction between the rights of the
- The Belgian Government filed a first Application with the Court against the corporation​ and those of the ​shareholder​.
Spanish Government in 1958. - Only the corporation can take action in respect of matters that
- The Court gave a notice of discontinuance of the proceedings, with a view were of a corporate character.
to negotiations between the representatives of the private interests - A wrong done to the corporation frequently causes prejudice to its
concerned. shareholders, but this does not imply that both are entitled to claim
- The negotiations, however, failed; and the Belgian Government, submitted compensation. Whenever a shareholder's interests are harmed by
to the Court a new Application. an act done to the corporation, it is the latter which can institute
- The Spanish Government raised four preliminary objections to the appropriate action.
Application. - An act infringing only the corporation’s rights does not involve
- The ​claim submitted​ to the Court responsibility toward the shareholders, even if their interests were
- The ​claim was presented on behalf of natural and juristic persons, affected. For the shareholders to have standing, the act
alleged to be Belgian nationals and shareholders in Barcelona complained of must be aimed at the direct rights of the
Traction, a company incorporated in Canada and having its head shareholders as such.
office there. - Similarly, under international law, an injury to the shareholder's interests
- The ​object of the Application was reparation for damage resulting from an injury to the corporation’s rights is insufficient to found a
allegedly caused to those persons by the conduct, said to be claim or to seek redress.
contrary to international law, of various organs of the Spanish
State towards that company. States’ right to exercise diplomatic protection

11
- Thus, the ​general rule is that In cases of an alleged unlawful act against a latter aided and abetted the Nigerian Government in committing violations of the
foreign corporation, it is the ​national state of the corporation which is law of nations in Nigeria. When the complaint was filed, Shell Petroleum
authorized to exercise diplomatic protection over such corporation for Development Company of Nigeria, Ltd. (SPDC/Respondent) was incorporated in
purposes of seeking redress. No rule of international law confers such Nigeria and engaged in oil exploration and production in Ogoniland. Concerned
right on the ​national state of the shareholders​. residents protested the environmental effects of SPDC’s practices, but the
- As an ​exception​, the following ​special circumstances may justify the respondents enlisted the Nigerian Government to violently suppress the protesters.
shareholders’ national state to exercise these rights: In sum, respondents’ violation includes – a) EJKs; b) crimes against humanity; c)
- If the corporation has ​ceased to exist​, or torture and cruel treatment; d) arbitrary arrest and detention; e) violations of the
- If the corporation has ​no capacity to take action right to life, security, and association; f) forced exile; and g) property destruction.
- Another ​exception alluded to in this case is when a ​treaty allows the
shareholders’ national state to exercise diplomatic protection. This is Petitioners filed suit in the US District Court for the Southern District of New York,
founded on the theory that investments by a state’s nationals abroad form alleging jurisdiction under ATS, and requesting relief under customary international
part of its national economic resources, and thus prejudice to these law. The invoked §1350 of the ATS provides: “​the district courts shall have original
investments would cause a “violation of the right of the state to have its jurisdiction of any civil action by an alien for a tort only, committed in violation of
nationals enjoy a certain treatment.” the law of nations or a treaty of the US.​” The District Court dismissed the claims for
letters a); e); f); and g). While the Second Circuit dismissed the entire complaint,
Application saying that the law of nations does not recognize corporate liability.
- Here, the Belgian Government had itself admitted that its claim is not
based on an “infringement of the direct rights of the shareholders.” Thus, Respondents argue that claims under ATS do not reach conduct occurring in the
the ​general rule ​should apply that an injury to the corporation, although territory of a foreign sovereign, presumption against extraterritorial application –
resulting in an injury to its stockholders, gives rise only to a claim in favor “when a statute gives no clear indication of an extraterritorial application, it has
of the former. none.” Petitioners, on the other hand, argue that even though the said presumption
- The exceptions do not apply. While Barcelona Traction has lost all of its applies, the text, history, and purposes of the ATS rebut it.
assets in Spain and has been placed in receivership in Canada, it ​cannot
be concluded that its corporate existence has ceased or that it has Whether the US courts may recognize a cause of action under the ATS for
lost its capacity to take action​. Neither is there a ​treaty between violations of the law of nations occurring within the territory of a sovereign
Belgium and Spain affording special protection to the Belgian other than the US? – ​NO​.
stockholders.
- Because Belgium had no standing to initiate the claim to begin with, the The petition is barred by virtue of the presumption against extraterritoriality
ICJ did not proceed to discuss the other merits of the case. that applies to claims under the ATS, and nothing in the statute rebuts the
said presumption​. The presumption serves to protect against unintended clashes
Case 2: Kiobel et al. v. Royal Dutch Petroleum Co., et al. (April 17, 2013) between US laws and those of other nations which could result in international
discord. For the US to run interference in a delicate field of international relations,
Recit Ready: there must be present the affirmative intention of the Congress clearly expressed.
Petitioners, a group of Nigerian nationals residing in US (previously residents of There is no indication that the ATS was passed to make the US a uniquely
Ogoniland, Nigeria) filed a suit under §1350 of the Alien Tort Statute (ATS) in the hospitable forum for the enforcement of international norms.
federal court against Dutch, British and Nigerian corporations, arguing that the

12
The ATS is strictly jurisdictional. It is true that Congress, even in a jurisdictional what Congress has done but what courts may do. There is a need for
provision, can indicate that it intends federal law to apply to conduct occurring judicial caution in considering which claims could be brought under the
abroad. However, to rebut the presumption, the ATS would need to evince a “clear ATS, in light of foreign policies. Hence, the principles underlying the
indication of extraterritoriality” – which it does not. Nothing in the text of ATS presumption against extraterritoriality constrain courts in exercising their
evinces the requisite of clear indication of extraterritoriality. Under the Transitory power under the ATS.
Torts Doctrine, “the only justification for allowing a party to recover when the cause 5. There is no indication that the ATS was passed to make the US a
of action arose in another civilized jurisdiction is a well-founded belief that it was a uniquely hospitable forum for the enforcement of international
cause of action in that place.” norms​.
6. Accepting petitioners’ view would imply that other nations, also applying
On these facts, all the relevant conduct took place outside the US. And even the law of nations, could hale US citizens into their courts for alleged
where the claims touch and concern US territory, they must do so with sufficient violations of the law of nations occurring in the US or elsewhere.
force to displace the presumption against extraterritorial application. ​Corporations
are often present in many countries, and it would reach too far to say that Disposition​:
mere corporate presence suffices. If Congress were to determine otherwise, Petitioners’ case seeking relief for violations of the law of nations occurring outside
a statute more specific than the ATS would be required​. the US is barred. The judgment of the Court of Appeals (the circuit court) is
affirmed.
Additional Ratio​:
1. The presumption against extraterritoriality helps ensure that the judiciary Separate Opinions​:
does not erroneously adopt an interpretation of US law that carries foreign
political consequences not clearly intended by the political branches. JUSTICE KENNEDY, concurring.
2. With regard to ATS’s history, when Congress passed it, the 3 principal ● The opinion for the Court is careful to leave open a number of significant
offenses against the law of nations had been identified as a) violation of questions regarding the reach and interpretation of the Alien Tort Statute.
safe conducts; b) infringement of the rights of ambassadors; and c) piracy. In my view that is a proper disposition.
● The first 2 have no necessary extraterritorial application. Hence, ● Many serious concerns with respect to human rights abuses committed
“violations against law of nations” were described in terms of abroad have been addressed by Congress in statutes such as the Torture
conduct occurring within the forum nation. Victim Protection Act and that class of cases will be determined in the
● For piracy, it typically occurs on the high seas, beyond US future according to the detailed statutory scheme Congress has enacted.
territorial jurisdiction. US has regularly treated high seas as foreign ● Other cases may arise with allegations of serious violations of international
soil for purposes of the presumption against extraterritorial law principles protecting persons, which are not covered by the TVPA nor
application. However, applying US law to pirates does not typically by the holding in today’s case. Thus in those disputes the proper
impose the sovereign will of the US onto another sovereign, implementation of the presumption against extraterritorial application may
therefore, carries less direct foreign policy consequences. require some further elaboration and explanation.
3. The question here is not whether petitioners have stated a proper claim
under ATS, ​but whether a claim may reach conduct occurring in the JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring.
territory of a foreign sovereign​. ● Specifically, I agree that when Alien Tort Statute (ATS) “claims touch and
4. The danger of unwarranted judicial interference in the conduct of foreign concern the territory of the United States, they must do so with sufficient
policy is magnified in the context of the ATS, because the question is not force to displace the presumption against extraterritorial application.”

13
● I write separately to set out the broader standard that leads me to the ● The Court sets forth four key propositions of law: First, the presumption
conclusion that this case falls within the scope of the presumption. against extraterritoriality applies to claims under the Alien Tort Statute.
● In Morrison v. National Australia Bank Ltd.: Second, nothing in the statute rebuts that presumption. Third, there is no
○ a cause of action falls outside the scope of the presumption—and clear indication of extraterritorial application here, where all the relevant
thus is not barred by the presumption—only if the event or conduct took place outside the United States and where the claims do not
relationship that was “the ‘focus’ of congressional concern” under touch and concern the territory of the United States . . . with sufficient force
the relevant statute takes place within the United States. to displace the presumption. Fourth, that is in part because corporations
○ For example, because “the focus of the [Securities] Exchange Act are often present in many countries, and it would reach too far to say that
[of 1934] is not upon the place where the deception originated, but mere corporate presence suffices.”
upon purchases and sales of securities in the United States,” we ● Unlike the Court, I would not invoke the presumption against
held in Morrison that §10(b) of the Exchange Act applies “only” to extraterritoriality. Rather, guided in part by principles and practices
“transactions in securities listed on domestic exchanges, and of foreign relations law, I would find jurisdiction under this statute
domestic transactions in other securities.” where (1) the alleged tort occurs on American soil, (2) the defendant is an
● In Sosa v. Alvarez-Machain: American national, or (3) the defendant’s conduct substantially and
○ the case makes clear that when the ATS was enacted, adversely affects an important American national interest, and that
congressional concern was focused on the three principal includes a distinct interest in preventing the United States from becoming
offenses against the law of nation” that had been identified by a safe harbor (free of civil as well as criminal liability) for a torturer or other
Blackstone: violation of safe conducts, infringement of the rights of common enemy of mankind.
ambassadors, and piracy. ● Recognizing that Congress enacted the ATS to permit recovery of
○ Thus, only conduct that satisfies Sosa’s requirements of damages from pirates and others who violated basic international law
definiteness and acceptance among civilized nations can be said norms as understood in 1789, Sosa essentially leads today’s judges to
to have been “the ‘focus’ of congressional concern,” when ask: Who are today’s pirates?
Congress enacted the ATS. ● In my view the majority’s effort to answer the question by referring to the
○ As a result, a putative ATS cause of action will fall within the “presumption against extraterritoriality” does not work well. That
scope of the presumption against extraterritoriality—and will presumption “rests on the perception that Congress ordinarily legislates
therefore be barred—unless the domestic conduct is sufficient to with respect to domestic, not foreign matters.” The ATS, however, was
violate an international law norm that satisfies Sosa’s enacted with “foreign matters” in mind. The statute’s text refers explicitly to
requirements of definiteness and acceptance among civilized “alien[s],” “treat[ies],” and “the law of nations.” The statute’s purpose was
nations. to address “violations of the law of nations, admitting of a judicial remedy
and at the same time threatening serious consequences in international
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR affairs.”.
and JUSTICE KAGAN join, concurring in the judgment. ● The majority cannot wish this piracy example away by emphasizing that
piracy takes place on the high seas. That is because the robbery and
(Basically, Justice Breyer opines that ATS can actually have jurisdiction of acts murder that make up piracy do not normally take place in the water; they
outside the US in certain cases, but the case does not fall under such jurisdiction.) take place on a ship. And a ship is like land, in that it falls within the
jurisdiction of the nation whose flag it flies.
● I agree with the Court’s conclusion but not with its reasoning.

14
● The majority nonetheless tries to find a distinction between piracy at sea the statute’s substantive reach, so we should look to international
and similar cases on land. It writes, “Applying U. S. law to pirates . . . does jurisdictional norms to help determine the statute’s jurisdictional scope.
not typically impose the sovereign will of the United States onto conduct ○ The Restatement (Third) of Foreign Relations Law is helpful.
occurring within the territorial jurisdiction of another sovereign and Section 402 recognizes that, subject to §403’s “reasonableness”
therefore carries less direct foreign policy consequences.” But, as I have requirement, a nation may apply its law not only (1) to “conduct”
just pointed out, “[a]pplying U. S. law to pirates” does typically involve that “takes place or to persons or things]within its territory but also
applying our law to acts taking place within the jurisdiction of another (2) to the “activities, interests, status, or relations of its nationals
sovereign. outside as well as within its territory,” (3) to “conduct outside its
● The majority also writes, “Pirates were fair game wherever found, by any territory that has or is intended to have substantial effect within its
nation, because they generally did not operate within any jurisdiction.” I territory,” and (4) to certain foreign “conduct outside its territory . . .
very much agree that pirates were fair game “wherever found.” Indeed, that is directed against the security of the state or against a limited
that is the point. That is why we asked, in Sosa, who are today’s pirates? class of other state interests.” In addition, §404 of the Restatement
○ Certainly today’s pirates include torturers and perpetrators of explains that a “state has jurisdiction to define and prescribe
genocide. And today, like the pirates of old, they are “fair game” punishment for certain offenses recognized by the community of
where they are found. Like those pirates, they are “common nations as of universal concern, such as piracy, slave trade,” and
enemies of all mankind and all nations have an equal interest in analogous behavior.
their apprehension and punishment.” ● Considering these jurisdictional norms in light of both the ATS’s basic
● In any event, as the Court uses its “presumption against extraterritorial purpose (to provide compensation for those injured by today’s pirates) and
application,” it offers only limited help in deciding the question presented, Sosa’s basic caution (to avoid international friction), I believe that the
namely “‘under what circumstances the Alien Tort Statute . . . allows courts statute provides jurisdiction where (1) the alleged tort occurs on American
to recognize a cause of action for violations of the law of nations occurring soil, (2) the defendant is an American national, or (3) the defendant’s
within the territory of a sovereign other than the United States.’” The conduct substantially and adversely affects an important American
majority echoes in this jurisdictional context Sosa’s warning to use national interest, and that includes a distinct interest in preventing the
“caution” in shaping federal common law causes of action. But it also United States from becoming a safe harbor (free of civil as well as criminal
makes clear that a statutory claim might sometimes “touch and concern liability) for a torturer or other common enemy of mankind.
the territory of the United States . . . with sufficient force to displace the ● As I have indicated, we should treat this Nation’s interest in not becoming
presumption.” It leaves for another day the determination of just when the a safe harbor for violators of the most fundamental international norms as
presumption against extraterritoriality might be “overcome.” an important jurisdiction related interest justifying application of the ATS in
● In applying the ATS to acts “occurring within the territory of another light of the statute’s basic purposes—in particular that of compensating
sovereign,” I would assume that Congress intended the statute’s those who have suffered harm at the hands of, e.g., torturers or other
jurisdictional reach to match the statute’s underlying substantive grasp. modern pirates.
That grasp, defined by the statute’s purposes set forth in Sosa, includes ● International norms have long included a duty not to permit a nation to
compensation for those injured by piracy and its modern- day equivalents, become a safe harbor for pirates (or their equivalent).
at least where allowing such compensation avoids “serious” negative ● More recently two lower American courts have, in effect, rested jurisdiction
international “consequences” for the United States. And just as we have primarily upon that kind of concern. In Filartiga, 630 F. 2d 876, an alien
looked to established international substantive norms to help determine plaintiff brought a lawsuit against an alien defendant for damages suffered
through acts of torture that the defendant allegedly inflicted in a foreign

15
nation, Paraguay. Neither plaintiff nor defendant was an American national ● Most importantly, this jurisdictional view is consistent with the substantive
and the actions underlying the lawsuit took place abroad. The defendant, view of the statute that we took in Sosa. This approach would avoid
however, “had . . . resided in the United States for more than ninth placing the statute’s jurisdictional scope at odds with its substantive
months” before being sued, having overstayed his visitor’s visa. objectives, holding out “the word of promise” of compensation for victims
Jurisdiction was deemed proper because the defendant’s alleged conduct of the torturer, while “break[ing] it to the hope.”
violated a well-established international law norm, and the suit vindicated ● Applying these jurisdictional principles to this case, however, I agree
our Nation’s interest in not providing a safe harbor, free of damages with the Court that jurisdiction does not lie. The defendants are two
claims, for those defendants who commit such conduct. In Marcos, the foreign corporations. Their shares, like those of many foreign corporations,
plaintiffs were nationals of the Philip- pines, the defendant was a Philippine are traded on the New York Stock Exchange. Their only presence in the
national, and the alleged wrongful act, death by torture, took place abroad. United States consists of an office in New York City (actually owned by a
A month before being sued, the defendant, “his family, . . . and others loyal separate but affiliated company) that helps to explain their business to
to [him] fled to Hawaii,” where the ATS case was heard. As in Filartiga, the potential investors. The plaintiffs are not United States nationals but
court found ATS jurisdiction. nationals of other nations. The conduct at issue took place abroad. And
● Application of the statute in the way I have suggested is consistent with the plaintiffs allege, not that the defendants directly engaged in acts of
international law and foreign practice. Nations have long been obliged not torture, genocide, or the equivalent, but that they helped others (who are
to provide safe harbors for their own nationals who commit such serious not American nationals) to do so.
crimes abroad. ○ Under these circumstances, even if the New York office were a
● Many countries permit foreign plaintiffs to bring suits against their own sufficient basis for asserting general jurisdiction, it would be
nationals based on unlawful conduct that took place abroad. Other farfetched to believe, based solely upon the defendants’ minimal
countries permit some form of lawsuit brought by a foreign national against and indirect American presence, that this legal action helps to
a foreign national, based upon conduct taking place abroad and seeking vindicate a distinct American interest, such as in not providing a
damages. Certain countries, which find “universal” criminal “jurisdiction” to safe harbor for an “enemy of all mankind.” Thus I agree with the
try perpetrators of particularly heinous crimes such as piracy and Court that here it would “reach too far to say” that such “mere
genocide, also permit private persons injured by that conduct to pursue corporate presence suffices.”
“actions civiles,” seeking civil damages in the criminal proceeding. ● I consequently join the Court’s judgment but not its opinion.
● Thus, the jurisdictional approach that I would use is analogous to, and
consistent with, the approaches of a number of other nations. It is
consistent with the approaches set forth in the Restatement. Its insistence
upon the presence of some distinct American interest, its reliance upon Case 3: Vedanta Resources PLC v. Lungowe - April 10, 2019
courts also invoking other related doctrines such as comity, exhaustion,
and forum non conveniens, along with its dependence (for its workability) This case provides a note of caution for ​multinational parent companies who
upon courts obtaining, and paying particular attention to, the views of the intervene closely in their subsidiaries’ activities. ​Here, the multinational parent
Executive Branch, all should obviate the majority’s concern that our company is Vedanta (UK), while the subsidiary is KCM (Zambia).
jurisdictional example would lead “other nations, also applying the law of
nations,” to “hale our citizens into their courts for alleged violations of the Facts
law of nations occurring in the United States, or anywhere else in the
Residents of the Zambian city of Chingola brought proceedings in the English
world.”
courts ​against Vedanta Resources Plc (Vedanta)​, ​a UK incorporated parent
16
company​, and ​Konkola Copper Mines Plc (KCM), its Zambian subsidiary​, Issues
claiming that waste discharged from the Nchanga copper mine - owned and
1. Whether there had been an abuse of EU law by the claimants in relying on
operated by KCM - had polluted the local waterways, causing personal injury to the
Article 4 of the Brussels Regulation Recast to establish jurisdiction over
local residents, as well as damage to property and loss of income. The claims are
Vedanta as anchor defendant for the purpose of attracting the English
founded in negligence​, although the allegations also relate to breaches of
courts’ jurisdiction over the claim against KCM, “the real targets of the
applicable Zambian environmental laws.
claim” - NO abuse of EU law
2. MAIN: Whether the claimants’ pleaded case and supporting evidence
Both Vedanta and KCM challenged jurisdiction.
disclosed no real triable issue against Vedanta - There is a real issue
against Vedanta (Parent Company issue- Vedanta owes a duty of
Vedanta’s Arguments
care to the claimants)
● Firstly, both Vedanta KCM assert that the claimants’ pleaded case
3. Whether England is the proper place in which to bring the claims -
and supporting evidence disclose no real triable issue against
Claimants may either sue both companies in Zambia, or to sue Vedanta in
Vedanta, because Vedanta cannot be shown to have done anything
England and KCM in Zambia
in relation to the operation of the Mine sufficient either to give rise to
4. Even if Zambia would otherwise be the proper place, whether there was a
a common law duty of care in favour of the claimants, or a statutory
real risk that the claimants would not obtain access to substantial justice in
liability as a participant in breaches of Zambian environmental
Zambia - YES
protection, mining and public health legislation. Vedanta was merely
an indirect owner of KCM, and no more than that.
Ruling
● Secondly, Vedanta maintains that, even if the pleaded claim discloses a
triable issue against it, nonetheless the claim should be stayed as an
1. There is NO abuse of EU Law
abuse of EU law​, because the claimants are using a claim against
● It would be an abuse of this rule to allow claimants to sue an
Vedanta in England purely as a vehicle for attracting English
English domiciled “anchor” defendant solely to pursue a foreign
jurisdiction against their real target defendant, KCM, by means of the
co-defendant (a “real” target) in the English courts but that this
necessary or proper party gateway.
exception should be applied strictly​. Both the High Court and the
● Both these submissions were rejected by the judge, and by the Court of
Court of Appeal found that the claimants had a bona fide
Appeal, but are pursued here, with the requisite permission of this court.
claim and a genuine intention to seek a remedy in damages
Further, the appellants submit that the issue as to abuse of EU law
against Vedanta, even though establishing the English
deserves a reference to the Court of Justice.
courts’ jurisdiction over KCM was also a key factor in their
decision to litigate in England.
In 2016, the High Court held that the claimants could bring their case in England,
● This was a sufficient basis for finding that there was no
despite the fact that the alleged tort and harm occurred in Zambia, where both the
abuse of EU law. The Supreme Court found no need to refer to
claimants and KCM are domiciled. This decision was upheld on appeal by the
the Court of Justice for the European Union. In reaching the
Court of Appeal in October 2017.
conclusion that the claimants intended to pursue a genuine claim
against Vedanta, the lower courts considered on a summary basis
In 2019, the Supreme Court has unanimously dismissed a further appeal by the
evidence put forward by the claimants that KCM may be unable to
Vedanta and KCM, upholding the Court of Appeal’s ruling in all but one respect.
pay a judgment debt.

17
2. There is a real issue against Vedanta. Vedanta owes a duty of care to about a parent that imposes group-wide policies on its
the claimants. subsidiaries.
● There is a number of ways in which doing so could expose
Vedanta’s Duty of Care to Claimants the parent to liability, including:
● Although it was common ground between the parties that the 1. where group-wide policies or guidelines contain systemic
defendants’ liability would be assessed under Zambian law, the errors that cause harm to third parties when applied by the
extent of Vedanta’s involvement in the operation of KCM’s mine subsidiary;
was a factual issue relevant to both the negligence and statutory 2. where the parent actively ensures the implementation of
liability claims. group-wide policies by providing training and supervising
● In this regard, the lower courts held (on a summary assessment) and enforcing their implementation; or
that ​Vedanta did owe a duty of care to the claimants ​(Some 3. if the parent holds itself out publicly as supervising or
acts: published a sustainability report which emphasised how the having control of its subsidiaries when it does not in fact
Board of the parent company had oversight over its subsidiaries, do so.
entered into a management and shareholders agreement under ● Here, as earlier mentioned, Vedanta was closely involved as a
which it was obligated to provide various services to KCM, parent company.
provided health, safety and environmental training across its group ● Even where group-wide policies do not of themselves give
companies, financial support). rise to a duty of care to third parties, they may do so if the
parent does not merely proclaim them, but takes active steps,
Parent Company Liability by training, supervision and enforcement, to see that they are
● Court, through Lord Briggs held that ​“there is no limit to the implemented by relevant subsidiaries.
models of management and control which may be put in ● Similarly, ​the parent may incur the relevant responsibility to
place within a multinational group of companies”​. Similarly third parties if, ​in published materials​, it ​holds itself out as
he rejected the submission that there was any general exercising that degree of supervision and control of its
limiting principle that a parent company could never incur a subsidiaries​, even if it does not in fact do so.
duty of care merely by issuing group-wide policies and ● Here, it was arguable Vedanta did owe a duty of care to the
guidelines and expecting the subsidiary to comply. ​These claimants given that it had:
comments will no doubt be of concern to multinationals wishing to ○ Published a sustainability report which emphasised how
understand in exactly what circumstances a parent company the Board of the parent company had oversight over its
might attract liability for its subsidiaries’ activities. subsidiaries.
● Lord Briggs noted that there is a wide range of models of ○ Entered into a management and shareholders agreement
management and control in the relationship between parents and under which it was obligated to provide various services to
their subsidiaries, from a parent merely being a passive investor in KCM, including employee training.
its subsidiary’s activities to a vertically integrated group which ○ Provided health, safety and environmental training across
effectively operates as one company. its group companies.
● In short, the risk of a duty of care being incurred is greater ○ Provided financial support to KCM.
the more closely involved a parent is with its subsidiary. ​The
risk is particularly acute where, as in this case, we are talking

18
○ Released various public statements emphasising its ● In this case, the anchor defendant, Vedanta, had by the time of
commitment to address environmental risks and technical the hearing offered to submit to the jurisdiction of the Zambian
shortcomings in KCM’s mining infrastructure. courts, so that the whole case could be tried there. This did not, of
○ Exercised control over KCM, as evidenced by a former course, prevent the claimants from continuing against Vedanta in
employee​. England.
● Article 8 of the Brussels Recast Regulation gives claimants in
3. Claimants may either sue both companies in Zambia, or to sue intra-EU disputes the choice (but not the obligation) to consolidate
Vedanta in England and KCM in Zambia. proceedings in order to avoid the risk of irreconcilable judgments.
● CPR 6.37(3) provides that: “The court will not give permission [to Thus, the same principle should apply where the claimants are
serve the claim form out of the jurisdiction] unless satisfied that domiciled outside the EU (as in this case).
England and Wales ​is the proper place in which to bring the ● Zambia was overwhelmingly the proper place for the claim to
claim.​ ” It has previously been labelled ​forum conveniens and be tried.​ Summary of the connecting factors:
appropriate forum​. The task of the court is to identify the forum in
which the case can be suitably tried for the interests of all the i) The allegedly wrongful acts or omissions occurred
parties and for the ends of justice. That concept generally requires primarily in Zambia.
a summary examination of ​connecting factors between the
case and one or more jurisdictions in which it could be ii) The causative link between the allegedly negligent
litigated​. Those include ​matters of practical convenience ​such operation of the Mine and the damage which ensued is of
as accessibility to courts for parties and witnesses and the course the escape of noxious substances into waterways,
availability of a common language so as to minimise the expense which also occurred within Zambia.
and potential for distortion involved in translation of evidence. iii) The Mine was operated pursuant to a Zambian mining
Although they are important, they are not necessarily licence and subject to Zambian legislation. In any event, it
conclusive​. Connecting factors also include matters such as the is common ground that all the applicable law is Zambian.
system of law which will be applied to decide the issues, the iv) The claimants are all poor persons who would have
place where the wrongful act or omission occurred and the real difficulty travelling to England to give evidence.
place where the harm occurred​. Although English is an official language in Zambia, many
● One of the problems raised is that the case involves ​multiple of the claimants only speak a local dialect which would
defendants domiciled in different jurisdictions​. require translation.
● The concept behind the phrases “the forum” and “the proper v) KCM’s witnesses of fact are all based in Zambia.
place” is that the court is looking for a single jurisdiction in which vi) Many of KCM’s documents would, like the evidence of
the claims against all the defendants may most suitably be tried. their witnesses, require translation.
An unspoken assumption behind that formulation of the concept of vii) All the regulatory and testing records and reports
forum conveniens or proper place is that there would ​risk relevant to the alleged emissions from the Mine are likely
multiplicity of proceedings about the same issues, and to be based in Zambia, as is the responsible regulator.
inconsistent judgments​. But ​it is only one factor in the viii) Vedanta’s relatively small number of employees are
evaluative task of identifying the proper place. likely to find it much easier to travel to Zambia than their
counterparts in KCM.

19
ix) A judgment of the Zambian court would be Conclusion: A ​ lthough the appellants were correct as to the issue of proper place,
recognisable and enforceable in England, against they failed the substantial justice issue, so their appeal is dismissed.
Vedanta. Zambian judgments are enforceable in England
under their law.

● In conclusion, the claimants had failed to demonstrate that UN Guiding Principles


England is the proper place for the trial of their claims against
these defendants, having regard to the interests of the parties and
the ends of justice.

United Nations Guiding Principles on Business and Human Rights

4. Even if Zambia would otherwise be the proper place, there was a real The United Nations Guiding Principles on Business and Human Rights (UNGPs) is
risk that the claimants would not obtain access to substantial justice an instrument which consists of 31 principles ​implementing the UN ‘Protect,
in Zambia. Respect, and Remedy’ framework on the issue of ​human rights and transnational
● Even if the court concludes that a foreign jurisdiction is the corporations and other business enterprises​. The UNGPs were developed by John
proper place in which the case should be tried, the court may Ruggie, the Special Representative of the Secretary-General. The Human Rights
nonetheless permit (or refuse to set aside) service of English Council endorsed the UNGPs in its resolution in the year 2011. The UNGPs apply
proceedings on the foreign defendant if satisfied, by cogent to all states and business enterprises.
evidence, that there is a real risk that substantial justice will
not be obtainable in that foreign jurisdiction. Important Note: The problem with the UNGPs is that it does not bind any states.
● Two factors: ​first, the practicable impossibility of funding such It’s not like a treaty. It’s just a framework, a “guide” on how states and business
group claims where the claimants were all in extreme enterprises should ac to protect human rights. There are States which have
poverty; and secondly, the absence within Zambia of acknowledged this instrument and implemented it through a National Action Plan
sufficiently substantial and suitably experienced legal teams (NAP). However, in the Philippines, there is still no existing law or NAP which
to enable litigation of this size and complexity to be acknowledge or enforce the UNGPs.
prosecuted effectively, in particular against a defendant
(KCM) with a track record which suggested that it would ● The document itself is quite long pero same lang sinasabi. It revolves
prove an obdurate opponent. around the three pillars
● The claimants were at the poorer end of the poverty scale in one
of the poorest countries of the world, that they had no sufficient
resources of their own (even as a large group) with which to fund
Three pillars of UNGPs: (PRR)
the litigation themselves, that they would not obtain legal aid for
this claim and nor could it be funded by a Conditional Fee 1. States duty to Protect human rights
Agreement (“CFA”) because CFAs are unlawful in Zambia. The
Zambian legal profession lacked the resources and experience 2. Obligation of the business enterprises to Respect
with which to conduct such litigation successfully.

20
3. Access to Remedy for victims of business-related abuses B. Context: has been happening for decades → Business and
Human Rights Timeline
1. 1972 Speech of Chilean President Salvador Allende
- Both States and Company have roles to play in ensuring that victims of a) Prelude to neoliberalism that dominates the world
human rights violations have access to remedy. b) States are being impinged on their most important
decisions- political, economic military-by global
corporations.
c) Go against the legitimate interests of developing
countries
2. 1964 UN Center on TCs
a) National sovereignty
b) Corporate responsibility
3. 1989 Washington Consensus: Worldwide Neoliberal
Agenda
4. 2000 UN Global Compact (UNGC) NO accountability for
TNCs
5. 2003 Norms on the Responsibilities of Transnational
UNGP PRINCIPLE 2 on extraterritoriality: “States should set clearly the Corporations and Other Business Enterprises with Regard
expectation that all business enterprises domiciled in their territory/jurisdiction to to Human Rights
respect human rights” 6. 2011 UN Guiding Principles on HR (UNGPs)
a) All businesses
7. 2013 Rana Plaza Collapse- Bangladesh (fast fashion)
Commentary ni John Ruggie: At present, States are not generally required under
C. Most prevalent HRVs not caused by governments but by TNCs
IL to regulate the extraterritorial activities of business domiciled in their territory, 1. Economic
nor are they prohibited from doing so. Some human rights treaty bodies 2. Social
recommend that home states take steps to prevent abuse abroad by business 3. Cultural rights
enterprises within their jurisdiction D. TNCs wield more financial power than states
1. Make more sales than GDPs
That's why the guiding principles fall behind: Only intended to provide a conceptual E. No enforceable legal regime
framework​ of existing obligations. 1. Weak non-binding instruments
2. Failure to implement system of accountability for HRVs
F. Power imbalance
1. Revolving door-- TNCs have access to top level officials of
Video Notes (Atty. Pochoy Labog)
government that can influence policies
G. TNCs in the Philippines
International Human Rights Law and Extraterritorial Jurisdiction Over Human 1. Mar Copper Mining Corporations
Rights Violation by Transnational Corporations a) Massive mine spill in Marinduque
Atty. Pochoy Labog b) Damages case: rita natal (2001)
c) April 6: 19th anniversary!!
I. Introduction 2. 2005: Nevada Case
A. TNCs -- huge gap in the current international legal regime and a) Marinduque v. Barine Gold
domestic law in addressing HRVs of corporations b) Dismissed: FNCs
21
II. Scope 1. Determines the social actors the international legal system
A. Obligations of TNCs of Home States to regulate activities in Host takes account of as distinguished from those being
States excluded from it
B. Fact pattern slide 2. 5 Conceptions
1. Global north v. global south a) States- only
2. TNC parent company → subsidiary/ affiliates in (1) Restricts the personal scope exclusively
developing countries to states
a) HOST State, territorial state- where HRVs happen b) Recognition
b) Do victims have access to the courts of the home c) Individualistic
state? (1) Individual human being as an
c) Does the home state have the obligation to international legal person
answer for the HRVs committed abroad by its (2) Does not depend on states but exists a
affiliates, subsidiaries, contracties? priori
d) Does the TNC itself have obligations when it (3) A posteriori concept
comes to human rights? d) Formal
III. Review of Key Concepts e) Actor
A. Jurisdiction 3. Significance
1. Westphalian: limited to a State’s territory a) Determines rights and duties/ obligations
a) Negative IL of state co-existence IV. Proposed Mechanisms
2. Globalization and transnational relations A. UN Guiding Principles on Business and Human Rights
3. Evolution of iL to a law of cooperation rather than mere 1. Global standard of practice
coexistence of states 2. 3 pillars
4. Forms a) PROTECT: Obligations of states to protect
a) Prescriptive or legislative b) RESPECT: Corporate responsibility to respect
b) Enforcement c) REMEDY: Victim’s access to effective remedy
(1) To enforce or compel compliance 3. Problem: voluntary and non-binding
(2) To punish non-compliance 4. NOT a LEGAL instrument but a CONCEPTUAL
c) Adjudicative FRAMEWORK
(1) To subject persons/ things to the B. Extraterritorial Human Rights Obligations of States
processes of its courts 1. UNGP Principle 2: States should set out clearly the
5. Presumption against territoriality expectation that all business enterprises domiciled in their
6. Principles of Jurisdiction territory and/or jurisdiction respect human rights
a) Territorial throughout their operations.
(1) Where the situation is located in all or 2. International HR law already imposes OBLIGATIONS on
some of the state’s territory STATES
b) Personal a) A duty to protect that extends to situations
(1) Where the perpetrator (“active” occurring outside the state’s national territory.
personality) or the victim b) REASONABLE LINK between the state and the
c) Protective conduct concerned
d) Universal c) A duty to cooperate for the full realization of
B. Legal Personality human rights

22
3. The Maastricht Principles on Extraterritorial 3. UNGPs 2nd Pillar: carefully worded as “Responsibility”
Obligations of States in the Area of Economic, Social rather than “Duty” or Obligation
and Cultural Rights VI. Issues and Proposals
a) Principle 8: Two Types of Extraterritorial A. Uncertainty over nationality and domicile
Obligations of States 1. Each municipal law has criteria for determining nationality
(1) obligations relating to the acts and B. Legal personalities in TNCs and Imputability
omissions of a State, within or beyond its C. Untenable proposition that International Human Rights Law
territory, that have effects on the imposes on TNCs
enjoyment of human rights outside of that VII. Recap
State’s territory; and A. TNCs are powerful domestically and internationally
(2) obligations of a global character that are B. Theres a huge gap in terms of exacting accountability in IL
set out in the Charter of the United
TOPIC 3: Status of the right to health under International Law; China’s
Nations and human rights instruments to
take action, separately, and jointly responsibility, if any, for the COVID-19 pandemic; and the relevance of
through ​international cooperation​, to human rights during a pandemic.
realize human rights universally
b) Scope of jurisdiction: A State has obligations to
respect, protect and fulfil economic, social and Right to Health and State Responsibility - Francis Tom Temprosa
cultural rights in any of the following:
(1) situations over which it exercises authority
Introduction ​(copied/modified from Justin and Kiko & Mars’ Reviewers)​:
or effective control, whether or not such
control is exercised in accordance with
international law; Current situation: COVID-19 Pandemic.
(2) situations over which State acts or - China is the country where the pandemic first surfaced
omissions bring about foreseeable effects
on the enjoyment of economic, social and Domestic suits
cultural rights, whether within or outside As of April 16, there have been 4 class action suits against China filed before US
its territory;
Domestic Courts
4. situations in which the State, acting separately or jointly,
- Plaintiffs
whether through its executive, legislative or judicial
branches, is in a position to exercise decisive influence or (1) Filed by property managers in California
to take measures to realize economic, social and cultural (2) Filed by residents of Florida
rights extraterritorially, in accordance with international (3) Filed by the state of Missouri - Seeking damages
law (4) Filed by a lawyer, Larry Clayman
C. Legally Binding Instrument on Transnational Corporations - All 4 suits were filed under US law and invoke US law
(LBI/ UN Treaty)
V. Direct Legal Obligations of TNCs
By May 6, 2 class action suits were filed before the Federal Court in Miami and
A. Due to to the nature and influence of TNCs, they should bear HR
there are similar ones in California, Pennsylvania, Nevada, and Texas. Mississippi
responsibilities
1. Current state of things: STATES as duty bearers is said to file a case and Florida may be the next state to file a case.
2. TNCs: Human Rights are none of our business
State to State suits
23
In the State to State level, we have seen States that are trying to pin the blame on i. Thus, the general rule is that the
China, in one way or another. conduct should be done by an
- The Trump administration is allegedly trying to look into a new trade war organ of the state
with China. The US is pressuring the EU to investigate China. 2. Constitutes a ​breach of an international obligation
- Japan is paying companies to leave China of a state”​ ​(Element 2)
a. Art. 12 of the Articles of State
A lot of the issues now is on international law state responsibility Responsibility: there is a beach of an
international obligation of a state when an
act of the state is not in conformity with
There are ​allegations​ that China what is required of it by that obligation,
- Silenced a whistleblower regardless of origin
- Failed to notify WHO of the real status of coronavirus in their country i. Action or omission is in violation
of a primary rule of international
With this background, the question is right to health and state responsibility – law to which that is obligated to
whether a State that actually fails to disclose public health emergencies or public follow (ex. A violation of a treaty,
health issues can be held liable or responsible for any resulting problems (losses) customary rule, or general
because of the failure of such disclosure. principle of international law).
b. Art. 31 of the Articles of State
2 Basic Sets of Rules in International Law: Responsibility:
1. Primary laws of international law i. (1) A state responsible is under
2. Secondary laws of international law -- rules that govern liabilities and the obligation to make full
responsibilities of states reparation for the injury caused
a. Art. 2 of the Articles of State Responsibility: There are ​2 elements by the internationally wrongful act
of an ​International Wrongful Act ii. (2) injury includes any damage
i. “A state is internationally liable for an internationally (material or moral) caused by an
wrongful act when the act or omission... internationally wrongful act of the
1. is ​attributable to the state under international law state
(Element 1) 1. Scenario given: The EU
a. There should be a connection/nexus expressed its desire to
between: (1) the act or omission and (2) seek reparation to
the state damages [“allegedly done
b. Under Art. 4 of the Articles of State by China”]
Responsibility: the ​conduct of any state
organ shall be considered an act of the But what are the substantive laws involved here? Can we say that China is
state under international law (legislative, responsible for the COVID-19 outbreak?
executive, judiciary)

24
- Temprosa: we cannot say that China is responsible because the - Does the application of ICESCR have extraterritorial application
act/omission must satisfy the 2 elements to be considered an value? (i.e. can the obligations of China under ICESCR have
Internationally Wrongful Act of a state. territorial effect?)
- Thus, the question now is: what are the rules that could have been - At present, it is recognized that a state has responsibilities not
breached by China under international law? What’s the legal basis? only within its borders, but even outside its territory as long as the
outside territory is within the effective control of the state
concerned
- We need to determine whether that particular patch of
territory is, even though outside the territory of the
concerned state, within ​effective control ​of the state
concerned
Right to Health - Temprosa opinion: China does not have control over the
territory of the US (in relation to the class suits filed in the
Principles US against China, seeking for damages)
- Right to Health = Human Right; it belongs to the people
- ICESCR: Everyone has a right to the highest attainable standard of health There could be another source of possible obligation on the party of China when it
- UNESCR: the Right to Health has... comes to the coronavirus spreading all over the world (an evolving matter) --
- 2 Components: International Health Regulations (IHR) of the World Health Organization
- Physical Health - China is a state party in the IHR (joined 2005)
- Mental Health - Art. 6, IHR: Each state party shall assess events occurring within its
- 4 Determinants: The right to health should be territory by using the process provided in Annex 2 of the IHR. TL; DR: the
- Available annex provides that
- Accessible - each state party shall notify the WHO through the most effective
- Adaptable means of communication available
- Of Quality - Notify within 24 hours from the occurring of the event which may
constitute an event of international concern
Now, can China be sued for a violation of a right to health of a citizen of another - Art. 6, Par. 2, IHR: following notification, the State shall continue to
country? communicate with WHO timely, accurate, and sufficient detailed public
- Things to consider.. health information available to it on the notified event
- Whether China is a state party of the ICESCR - Providing WHO with case definitions, laboratory results, sources
- Whether China can be liable as a state party of the ICESCR of risk, number of cases/deaths
- At present, China is a state party of the ICESCR. It has - The question now is: ​Was there a timely notification on the part of
the obligation to implement the convention in its territory China regarding COVID-19?
regardless of the citizenship of the person (i.e. China is - Art. 7, IHR: if the state party has evidence of
responsible for the health of that person) unexplained/unusual/unexpected public health event within its territory,
irrespective of origin or source which may constitute a public health
emergency of international concern, it shall provide to WHO all relevant

25
information (i.e. information sharing during unusual/unexpected public - On the indemnity for economic damages, the burden of
health events) proof lies on the party that alleges damages
- Given this, Art. 6 should apply in full. There is a timely requirement - Damage caused was not something that China could have reasonably
of notification on the part of the state party. prevented
- Chorzo factory case, and other related cases on reparation: - Damage to other countries could not have been reasonably
- A reparation must, as far as possible, prevented
- be able to wipe out all the consequences of the illegal act - The question here is a ​question of nexus
and - In the Bosnian Genocide case (2007), the question of whether
- reestablish the situation which would in all probability have there is a sufficiently direct and certain causal ​nexus between the
existed, had it not been for the act wrongful act​ and the​ breach​ has to be proven
- Rainbow warrior case: - Such nexus can only be considered only if the Court
- The Tribunal has to consider an order of payment from monetary would be able to conclude from the case as a whole and
compensation that could be made in case of breach of an with reasonable certainty that the act would have in fact
international obligation involving serious moral and legal damage, been averted if the State acted in compliance with its legal
even though there is no material damage obligations
- It is yet to be determined whether China is still at fault, if there was delay in - China could probably argue that it could not have
the notification, and if this delay consisted a violation of the IHR or the prevented this, no matter what it does – this is something
WHO Constitution that resulted from a biological cause or a epidemiological
- It is only when there is damage that a state can be held liable concern that is not within the hands of the State

Defenses that China can use​ ​(copied/modified from Kiko & Mars’ Reviewer):​ The issue: even if a State such a China could be held liable, we have to find a
- China did not actually violate any legal obligation, whether in ICESCR or state that could sue China
IHR - That is a political move in the part of the suing State
- (Attributability) Assuming further that there was some sort of problem and
this problem occurred in the territory of China, Chinese authorities and Human Rights Law can also be an avenue not before the ICJ, but before the
state organs were not involved at all in the alleged violation of international Comm. on Economic and Social Rights (ICESCR)
obligations - There can be a communication filed essentially arguing that China is in
- Actions were by private actors and China did not commit anything violation of ICESCR (breach of Art. 12 of ICESCR and the Right to Health
wrong provision)
- The burden of proof actually lies not only China but on other states to - The value in that is that the ICESCR committee can:
prove that China actually committed something wrong and the States - weigh in and propound views on the matter.
should prove that any damage incurred was in fact caused by China by a - could rule on the extraterritorial nature of the obligations of
failure to act or an action was in violation of international obligation China.
- Trail Smelter case (p.1931) - damages with respect to business - But, unfortunately, it cannot really enforce payment
enterprises because the views of the Committee are not really
- the nature of the damage has to be proven for there to be enforceable in that sense.
reparations

26
vote, in its meetings or in those of the committees and conferences
convened under its authority, on conditions prescribed by the Health
WHO Constitution salient points
Assembly; but in the case of national organizations, invitations shall be
Chapter I (Objective) issued only with the consent of the Government concerned;
Article 1 - The objective of the World Health Organization (hereinafter called the - (i) to consider recommendations bearing on health made by the General
Organization) shall be the attainment by all peoples of the highest possible level of Assembly, the Economic and Social Council, the Security Council or
health. Trusteeship Council of the United Nations, and to report to them on the
steps taken by the Organization to give effect to such recommenda- tions;
Chapter II (Functions) - (j) to report to the Economic and Social Council in accordance with any
Article 2 - The functions of the Organization shall be: agreement between the Organization and the United Nations;
- (a) to act as the directing and coordinating authority on international health
work; Article 21 - The Health Assembly shall have authority to adopt regulations
- (b) to establish and maintain effective collaboration with the United Nations concerning:
xxx; - (a) sanitary and quarantine requirements and other procedures designed
- (c) to assist Governments, upon request, in strengthening health services; to prevent the international spread of disease;
- (d) to furnish appropriate technical assistance and, in emergencies, - (c) standards with respect to diagnostic procedures for international use;
necessary aid upon the request or acceptance of Governments; - (d) standards with respect to the safety, purity and potency of biological,
- (g) to stimulate and advance work to eradicate epidemic, endemic and pharmaceutical and similar products moving in international com- merce;
other diseases;
- (n) to promote and conduct research in the field of health; Article 22 - Regulations adopted pursuant to Article 21 shall come into force for all
- (q) to provide information, counsel and assistance in the field of health; Members after due notice has been given of their adoption by the Health Assembly
- (r) to assist in developing an informed public opinion among all peoples on except for such Members as may notify the Director-General of rejection or
matters of health; reservations within the period stated in the notice.
- (v) generally to take all necessary action to attain the objective of the
Organization. Chapter VI (The Executive Board)
- composed of delegates representing the state members of the WHO
Chapter V (The World Health Assembly) - composed of delegates representing the
state members of the WHO Article 28 - Functions of the Executive Board
Article 18 - Functions of the Health Assembly - (a) to give effect to the decisions and policies of the Health Assembly;
- (a) to determine the policies of the Organization; - (b) to act as the executive organ of the Health Assembly;
- (g) to instruct the Board and the Director-General to bring to the attention - (e) to submit advice or proposals to the Health Assembly on its own initia-
of Members and of international organizations, governmental or non- tive;
governmental, any matter with regard to health which the Health Assembly - (i) to take emergency measures within the functions and financial
may consider appropriate; resources of the Organization to deal with events requiring immediate
- (h) to invite any organization, international or national, governmental or action. In particular it may authorize the Director-General to take the
non-governmental, which has responsibilities related to those of the necessary steps to combat epidemics, to participate in the organization of
Organization, to appoint representatives to participate, without right of health relief to victims of a calamity and to undertake studies and research

27
the urgency of which has been drawn to the attention of the Board by any PART I: A smelter for zinc and lead ores was operated in a place called Trail in
Member or by the Director-General. Canada by the Consolidated Mining and Smelting Company of Canada. The
smelter produced emissions of sulphur dioxide fumes. The US Government
Chapter XIV (Reports Submitted by States) complained that the fumes were causing damage in the state of Washington.
Article 61 - Each Member shall report annually to the Organization on the action
taken and progress achieved in improving the health of its people. ISSUES: WON Canada is liable for damages to the US. - YES
WON the Trail Smelter should be required to refrain from causing damage in
Article 63 - Each Member shall communicate promptly to the Organization impor- Washington in the future. - YES
tant laws, regulations, official reports and statistics pertaining to health which have
been published in the State concerned. HELD: It was found that there was injury caused to the US. Hence, Canada is
liable for damages caused by the Trail smelter. But, the question is how much. The
Chapter XVIII (Interpretation) US claims a total of $2.1M in damages.
Article 75 - ​Any question or dispute concerning the interpretation or application
of this Constitution which is ​not settled by negotiation or by the Health ● In determination for damages, tribunal considers the following:
Assembly shall be ​referred to the International Court of Justice in conformity (a) Existence of Injury
with the Statute of the Court, unless the parties concerned agree on another mode (b) Cause of Injury
of settlement. (c) Damage due to the Injury
- NOTE: But the consent of both parties (the suing state and the state to be
sued) is required to be able to go to ICJ (under international law, dispute ● Where the tort itself is of such a nature as to preclude ascertainment of
resolution is based on a state’s consent). damages with certainty, it would be a perversion of fundamental principles
of justice to deny all relief to the injured person, and thereby relieve the
Article 76 - Upon authorization by the General Assembly of the United Nations or wrongdoer from making any amend for his acts
upon authorization in accordance with any agreement between the Organi-zation ○ In such a case, while damages may not be determine by mere
and the United Nations, the Organization may request the International Court of speculation, it will be enough if the evidence show the extent of
Justice for an advisory opinion on any legal question arising within the competence the damages as a matter of just and reasonable inference,
of the Organization. although the result be only approximate.

Trail Smelter case summary ● Different Claims for damages by US


○ Damages in respect of cleared land, uncleared land and
DOCTRINE: The arbitration panel announced two revolutionary legal improvements thereon
concepts relating to transboundary damages in its judgments. First, that no ■ Court awarded damages of $78,000 since there was
nation has the right to use or require its territory to cause harm to another’s ample evidence to show that the sulfur dioxide emanating
territory or to the property or person(s) therein. Second, that a polluting state from the trail smelter caused the damage upon such lands
has to compensate for the harm caused by polluting activities on their own ○ Damages for Livestock
territory. Canada was eventually forced to pay US reparations. ■ Tribunal held that US has failed to prove the presence of
the fumes from the trail smelter which injured the livestock
○ Damages in respect for property in town of Northport

28
■ Tribunal held that no proof of damage to such properties ○ Tribunal: Under the Convention (Article XIII) each Government
○ Damages in respect of business enterprises shall pay the expenses of the presentation and conduct of its case
■ Tribunal is of the opinion that the damage is “too indirect, before the Tribunal. Whatever may have been the nature of the
remote and uncertain” to be appraised and not such for expenditures previously incurred, the Tribunal finds that monies
which an indemnity can be awarded expended by the United States in the investigation, preparation
■ Burden of proof of such damages lies with the US and proof of its case after the Convention providing for arbitral
○ Damages in respect of the wrong done in the US in violation of adjudication, including the aforesaid provision of Article XIII, had
sovereignty been concluded and had entered into force, were in the nature of
■ As argued by US: Computation of damages: measured by expenses of the presentation of the case.
the cost incurred by the US in investigating the problems ○ An indemnity cannot be granted without reasonable proof of the
created by the smelter. existence of an injury, of its cause and of the damage due to it.
■ Tribunal: The tribunal held that the US should not be The presentation of a claim for damages includes, by necessary
awarded this particular claim since it was not within the implication, the collection in the field of the data and the
intention of the parties to include money expended for the preparation required for their presentation as evidence in support
investigation of the case as part of the term “damages of the statement of facts provided for in Article V of the
caused by the Trail smelter.” In other previously decided Convention.
cases, damages awarded for expenses were awarded not ○ There is a fundamental difference between expenditure incurred in
as compensation for violation of national sovereignty but mending the damageable consequences of an injury and monies
as compensation for expenses incurred by individual spent in ascertaining the existence, the cause and the extent of
claimants in prosecuting their claims for the wrongful acts the latter. These are not part of the damage, any more than other
of the offending Government. costs involved in seeking and obtaining a judicial or arbitral
■ Such expenses should not be allowed where each remedy
government has incurred expenses and where it is to the ○ When a State espouses a private claim on behalf of one of its
mutual advantage of the 2 governments that a just nationals, expenses which the latter may have incurred in
conclusion and a permanent disposition if an international prosecuting or endeavoring to establish his claim prior to the
controversy should be reached. espousal are sometimes included and, under appropriate
conditions, may legitimately be included in the claim.
● The Train Smelter shall refrain from causing damage in Washington in the ○ They are costs, incidental to damage, incurred by the national in
future to the extent set forth. The Tribunal then provided for a temporary seeking local remedy or redress, as it is, as a rule, his duty to do,
regime for the regulation of sulphur emissions. if, on account of injury suffered abroad, he wants to avail himself
of the diplomatic protection of his State.
PART II: Two years later, the Tribunal met again and reiterated its decision but
added the following: ● A State owes at all times a duty to protect other States against injurious
acts by individuals from within its jurisdiction.
● US appeals to the decision of the tribunal as to the damages incurred for ○ Under the principles of international law, as well as of the law of
investigation which was denied on the first decision the United States, no State has the right to use or permit the use
of its territory in such a manner as to cause injury by fumes in or to

29
the territory of another or the properties or persons therein, when ■ Post-visit
the case is of serious consequence and the injury is established ● WHO said that it appreciated China,
by clear and convincing evidence. “especially the commitment from top
○ The Tribunal holds that Canada is responsible in international law
leadership,and the transparency they have
for the conduct of the Trail Smelter. It is, therefore, the duty of the
demonstrated.”
government of Canada to see to it that this conduct should be in
conformity with the obligation of Canada under international law as
● Only declared a public health emergency of
herein determined. The Trail Smelter shall be required to refrain international concern after the meeting.
from causing any damage through fumes in the State of ● WHO declared the coronavirus a pandemic
Washington. on March 11, even though it had spread
globally weeks before.
● The tribunal then set forth a permanent regime for monitoring and ○ WHO praised China for COVID measures but neglected the
regulating the pollution from the Trail Smelter. negative externalities
■ Neglected: Economic damage, failure to treat many
China as an accomplice news non-coronavirus patients, psychological woes, and
By: Hinnerk Feldwisch-Drentrup human rights costs
After initial denials and cover-ups, China successfully contained the ○ WHO accepts and takes numbers reported by Beijing at
COVID-19 outbreak — but not before it had exported many cases to the face value
rest of the world. ■ China’s official data is often highly dubious
■ Countless people are dying at home in Wuhan, and it
● BEIJING and WHO: was alleged that it never went into the statistics
○ WHO was steered away by Beijing from getting information ■ A considerable percentage of asymptomatic cases
re: COVID-19 has not been reported, which amounts to about 50%
■ Pre-visit to China more known infections in China
● International experts of WHO did not get ○ WHO’s justification: “Every country has its own self-reporting
access to the country until Director-General processes”
Tedros Adhanom visited President Xi Jinping ■ a WHO spokesperson stated that China reported
at the end of January. and isolated ALL individuals with
● WHO, without access, was uncritically laboratory-confirmed COVID-19. However, Chinese
repeating information from Chinese authorities only made public the current numbers of
authorities, ignoring warnings from asymptomatic cases with lab-confirmed infections in
Taiwanese doctors (unrepresented in WHO), the beginning of April—which also are included in the
and reluctant to declare a “public health WHO case definition for COVID-19
emergency of international concern.”

30
■ WHO reported the number of people put in organized along Potemkin-esque lines for a team
quarantine, isolation, or residential restriction from where most of its international members lacked
China’s National Health Commission—which are linguistic skills and familiarity with China.
much smaller than the numbers calculated in third ○ WHO allowed China to exert influence in the global health
party statistics, and insisted that China was not space
hiding anything ■ WHO had evolved out of colonial-era international
○ WHO experts who travelled to China did not include in the sanitary conferences convened by the European
screening programs those who did not have a fever powers and expansionist U.S. policy.
■ Compared to Germany’s screening program: ■ Since WHO was controlled and largely influenced by
included those who did not show a fever, and the national interests of Western powers before,
eventually tested positive. countries like China have started to have more
○ WHO also left many questions open about how public influence in the global health space.
engagement was managed and prevention and control in ■ Beijing’s say is growing not only at WHO, but also in
general the health policies of more and more countries.
■ WHO reported that the community has largely ● Effects of the falsehoods it passed on:
accepted the prevention and control measures and is ○ Delayed global response
fully participating in the management of self-isolation ○ Ill-advised health policies in other countries
and enhancement of public compliance ○ The Chinese government is able to make its propaganda
■ that Chinese people have reacted “with courage and campaign to ignore its earlier mistakes, appear credible, and
conviction”, and have “accepted and adhered to the to ignore the human, societal, and economic costs of its
starkest of containment measures.” responses
■ While this is probably true for many, others were ● Quarantine v. Testing
likely motivated by a statement of the Supreme ○ According to Richard Neher, a virologist at the University of
People’s Court: People carrying the virus who don’t Basel, it’s no surprise that China’s containment strategy was
follow quarantine restrictions “face jail terms ranging effective as the big lockdown, centralized quarantine, and
from three to 10 years if the consequence is not contact tracing for sure accelerated the decline.
serious,” Otherwise, they could face a life sentence ○ Lawrence O. Gostin, director of the WHO Collaborating
or death. Center on National and Global Health Law at Georgetown
■ The WHO mission didn’t have the chance to speak University, points to “major human rights” concerns with the
with people with opposing views. lockdown techniques pioneered in China and now adopted
■ The very uniformity of this narrative should have in many nations.
been a wake-up call. During the whole trip of both
foreign and national experts, it seems to have been

31
■ Gostin recommends standard public health - A few governments have taken appropriate steps – acting early and
measures like testing, treatment, contact tracing, and showing amazing flexibility.
isolation or quarantine “as scientifically justified.” - The right to health is an internationally recognized human right.
- UN Committee on Economic, Social, and Cultural Rights on the
● China’s Political Moves
right to health:
○ Belt and Road Initiatives and activities in African countries
- inclusive right extending not only to timely and appropriate
○ Countries like Laos, Cambodia, and Thailand cannot escape health care but also to the underlying determinants of
the influence of China as the latter’s representatives said: health, such as
“must let your borders open—otherwise we would have to - access to safe and potable water and adequate
rethink our friendship.” sanitation,
○ Vietnam and Korea also cannot close its borders with China - ​an adequate supply of safe food,
because “it’s the big power of the neighborhood.” - ​nutrition and housing,
○ China itself temporarily closed its border to Laos almost - healthy occupational and environmental
completely during its COVID-19 outbreak, forcing the north conditions, and
of the country into a critical economic crisis - ​access to health-related education and
○ Beijing closed its borders to almost all foreigners—a move information,
that it had criticized other countries for during the outbreak - ​including on sexual and reproductive

within its own borders. health.


- A further important aspect is the participation of the
population in all health-related decision-making at the
community, national and international levels.
Respecting human rights in the time of COVID-19 - ​UN High Commissioner for Human Rights, Michelle Bachelet on the

Part I – ​The Virus, its Spread, and its Human Rights Impacts COVID-19 outbreak:
- a serious threat to the rights to life and to health of people
- Governments from around the world have reacted to the COVID-19 everywhere
pandemic in an uncoordinated way despite warnings from the World - the international human rights framework can bring crucial
Health Organization to take this threat seriously. guideposts that can strengthen the effectiveness of a global
- Some of the government actions that has caused delay and cost collective response.
thousands of lives: - Key human rights concerns that must be addressed in facing the
- Some were slow to publicize the seriousness of the situation COVID-19 pandemic, involving the balance between the legitimate use of
- Some imposed censorship and threatened journalists state powers to protect public health, and restraints on those powers to
- Some denied the significance of the disease and the views ensure human rights are respected:
echoed by media outlets - Respect rights
- ​Some are using the crisis as an opportunity to assert controls that
- Include everyone
would restrict human rights - Ensure access
- Protect the vulnerable
32
- Focus on women - At the same time, such surveillance is a real threat to respect for human
- Eliminate racism and xenophobia rights.
- Deploy technology - The real costs of such intrusive surveillance will be borne by the
marginalized and economically weak sections of the society.
- Limit restrictions and surveillance
- Permit dissent
Racism and Xenophobia
- All governments bear the primary responsibility to respect, protect, and
fulfil human rights. - People who may have visited impacted areas have been barred entry in
- International human rights law permits governments to suspend some countries. There have been racist and xenophobic attacks on
certain rights while ensuring realization of other rights, provided Asians, including the Chinese, or those judged by appearance to be from
the suspension follows certain specific norms. China, in several countries over recent months over fears relating to
COVID-19.
Quarantines, Lockdowns, and Restrictions - Businesses must offer services to all users, regardless of their ethnicity,
nationality, or any other distinguishing characteristics while safeguarding
- Quarantining large groups of people or isolating them can only be done as
the rights of their own workers.
per the law, be strictly necessary to achieve a specific and legitimate
objective, rely on scientific evidence, and should not be arbitrary or Migrant Workers
discriminatory.
- The decision to quarantine should be: - Migrant workers – international as well as within a country – have been
- Time-bound, particularly vulnerable during this crisis.
- respect human dignity, and
- Migrant workers typically do not enjoy the same rights as citizens of the
- be subject to review
host country, which leaves them in a precarious situation during a crisis
- ​Quarantined people should have access to basic necessities of life,
such as the one at present.
including food, water, shelter, and healthcare.
- Human rights experts also recommend that quarantines where needed Women
should be compatible with human rights norms and laws, which means:
- coercion should be used only where strictly necessary, and - Women may not find it easy to work from home because in many
- the measures should be transparent, fair, and resource societies, they are expected to bear a disproportionately large workload at
dependent. home.
- This includes caring for children and the elderly, cooking, and
Surveillance Risks performing other household chores, which their male partners may
be unwilling to perform.
- Technology can provide valuable clues to governments trying to trace the
- Women in abusive, violent, or manipulative relations with their partners or
spread of the virus by monitoring telecom traffic.
within their families may be at heightened risk when they are forced to stay
- Telecom companies can provide valuable insights that can help in
at home for longer hours, increasing their vulnerability.
identifying areas and individuals that require special attention.
- There has been an alarming surging in domestic violence against
- Companies have provided governments with ‘heat maps’ that can help
women during this pandemic.
determine movements of people during the spread of the disease.

33
The Poor - ensure that conduct does not cause or contribute towards harms; address
risks identified as salient; and
- The virus is indiscriminate and affects everyone. - enable the realisation of all rights, including the right to health, by using all
- Wealth, religion, dietary habits, gender, physical fitness, or social forms of available leverage
status offer no immunity to individuals or groups.
- But it is already clear that COVID-19 disproportionately impacts the poor, Premise – Business enterprises should respect human rights. This means that
in part because they lack the resources to take adequate precautions. they should avoid infringing on the human rights of others and should address
adverse human rights impacts with which they are involved.
All rights are important
Duty of Care
- Rights are too often seen in terms of needs, and the state grants them as - Companies operating in countries where COVID-19 is virulent have a
privileges. That is wrong. special duty of care towards their staff and others impacted by their
- Not all governments have similar resources and not all societies are at a activities. But in societies without adequate resources, they face ​enhanced
similar stage of development. expectations and bear a ​bigger responsibility to offer assistance to those
- Consequently, companies which have the capacity to act (because of their who are affected.
assets or the resources at their command) are often expected to play a - This means:
larger role in helping the state meet its objectives to protect human rights, - Providing a range of measures, including providing safe and
even if they may not have any legal obligation to do so. sanitary work conditions in situations where workers have no
- It is also true that governments in some cases are in fact unable to meet choice but to work from an office, workplace or any other facility
their obligations (due to lack of resources or the nature of the crisis) while other than their home.
in others they are simply unwilling to do so, which too raises expectations - Protecting workers from exposure to the virus by offering
among some that companies must do more. necessary tools, including equipment such as face-masks and
- Companies have clear responsibilities towards their employees. disinfectants for staff members likely to encounter the general
- But it is also the case that they have a responsibility towards public as part of their work.
contractors and their employees (in particular those who work on - Taking reasonable care to protect staff from contracting the virus
premises) as well as suppliers, associates, and other partners, through direct physical exposure to visitors and customers.
consumers, and wider society and the general public who are
affected by a company’s presence and operations. Problems:
- Some companies have been forced to reduce staff during the ongoing
COVID-19 outbreak, but in so doing, have chosen to furlough staff (which
Part II – ​Corporate Responsibility to Respect Human Rights​ onwards
ensures their health coverage for a limited period) and not laid them off (in
which case they might lose such coverage).
The UN Guiding Principles on Business and Human Rights (UNGPs) expect
- Some company chief executives have decided to reduce or forego their
businesses to…
salaries this year as a sign of leadership and commitment to the welfare of
- undertake due diligence and assess impacts of their operations and
staff. In this context, companies also need to re-examine their severance
conduct in terms of respect for all rights, including the right to health;
policies.
- take all possible steps to mitigate any harms;

34
While it may not be legally obligatory, and it may even be financially difficult… g. Rethink customer interface
- Larger companies in particular should consider how to enhance such 3. Review wider operations.
packages in the event their operations close down, since during an a. Reduce non-essential travel:
economic downturn it takes much longer for people to find new jobs. b. Suspend operations where the outbreak is severe and offer full
- Other companies should take steps to prioritise recruitment of recently pay and benefits to affected staff where reasonable and practical if
unemployed individuals so that fewer lives are disrupted. resources permit.
c. Rethink production practices
Owning the Cure 4. Protect and support workers.
- Pharmaceutical companies in the race to develop a COVID-19 vaccine a. Putting in place (where possible and appropriate) childcare
must be guided by international standards, and make their discoveries services and other caring assistance for staff
publicly available so that all individuals affected by the crisis can benefit, b. Offer flexible working hours and staggered arrival times for those
and not only a select few, due to their nationality, ethnicity, religion, wealth, employees who need to travel to work.
or any other status. c. Enable work from home where feasible
- When the vaccine for COVID19 comes, it should be provided ​without d. Protect workers who do not have the option of working from home
discrimination​. Meanwhile as it is still to come, the ​human rights-based 5. Deal with sickness.
approach is already known as another effective pathway in the prevention a. Encourage and require sick employees to stay at home.
of major public health threats. b. Be generous with sick leave
c. Offer psychological support where necessary
How Companies Should Respond 6. Communicate clearly.
7. Engage unions.
Companies should have as the basis of all policies in emergency situations the 8. Support and strengthen the supply chain.
following: a. Know the supply chain and diversify suppliers
1. Be prepared. b. Protect workers in the supply chain
2. Do no harm. c. Offer jobs for the newly-unemployed
3. Ensure non-discrimination. d. Build capacity of suppliers to make them more resilient
e. Lobby host governments to protect workers’ rights
Concrete Steps 9. Respect and reassure customers and users.
a. Maintain access
1. Monitor the premises and health of employees. b. Offer early access to vulnerable customers
2. Redesign the workplace. c. Target false claims and price gouging
a. Make essential hygiene products available d. Ensure online accuracy
b. Routinely and regularly clean premises 10. Be creative with strengths.
c. Disable recirculation of internal air a. Retool plant or offer resources to address the crisis
d. Increase the space and distance between workers b. Donate medical supplies and essential services where needed
e. Ensure that no elevator carries more than half its required capacity 11. Protect undocumented people and prisoners.
at a given time 12. Consult and work with authorities.
f. Stagger dining hours

35
36
just Philippine law; (3) the arbitration tribunal can evaluate the acts and
omissions of states as a whole, including all its instrumentalities; and (4)
TOPIC 4: The State’s Right to Regulate vis-a-vis Investment Treaty substantive protections in investment treaties, such as the imposition of
Obligations specific standards by which a state’s conduct is assessed, like fair and
equitable treatment standards, and direct or indirect expropriation
standards (i. e., public purpose, non-discrimination, and adequate
I. Reading 1 + Talk compensation) (Atty. Panlilio’s talk).

READING: Chapter 2: International Investment Agreements and the Right to


Key takeaways:
Regulate: An Introduction
● The state’s right to regulate is an expression of its internal sovereignty.
Investment treaties and arbitration cases have resulted in limitations being
International Investment Agreements ​(IIAs)
placed on state sovereignty. For instance, disputes in public health have
​IIAs are the most important source of international investment law = lays down the
instigated a discussion on the extent to which investment agreements are
rights and obligations of host states and investors
able to limit a state’s internal sovereignty.
● International Investment Agreements (IAAs)/ Investment Treaties may
There are several types of IIAs
provide for a host state’s right to regulate through general and specific
1. ​[Multilateral and Regional Levels] FTAs and Economic Partnership
exceptions in IIAs or by explicit provisions on the state’s right to regulate,
Agreements
which shall extend to legitimate policy objectives and protection of public
● Contain either investment chapters or investment provisions
interest, such as health, social services, education, safety, environment,
privacy and data protection, cultural diversity, and other social and
● States that become parties to these depends on the geographical
economic objectives. region or sector in which cooperation in trade and investment is
● However, even without treaty exceptions, general international law allows being sought
states to adopt measures to protect public interests, such as public health. ● Example: Energy Charter Treaty (ECT) = multilateral treaty that
“The responsibility for public health measures rests with the government is applicable to the energy sector; includes investment protection
and investment tribunals should pay great deference to governmental rules for investors in the energy sector
judgments of national needs in matters such as the protection of public 2. ​[Bilateral Investment Treaties (BITs)] Concludes between states on a

health” (case of ​Philip Morris​). ilateral level


● There are, however, conditions for the adoption of public health measures ● Commonly encountered types of IIAs
as an exercise of sovereignty. The measure must be (1) made in good ● According to the UNCTAD World Investment Report of 2016, there
faith; (2) non-discriminatory/ targeted to a specific business; (3) with are 3,304 IIAs of which 2,946 are BITs
rational basis/ proportionate to the objective; (4) with limited adverse ● First BIT was signed between Pakistan and Germany in 1959
impacts to the business; (5) an effective means to protect public health ● There was a rise of BITs in the 1990s and early 2000s
(Atty. Panlilio’s talk, with reference to the ​Philip Morris c​ ase). ● According to a more recent UNCTAD report, the 2010's has seen
● In the context of COVID 19 measures, investment treaties may serve as a decline in treaty making (in 2017, there were only 18 IIAs
restraints or checks on the power of sovereignty of states. Examples of concluded, half of which were BITs)
these restraints are: (1) the procedural recourse in investment treaties,
such as arbitration clauses; (2) applying IL in settling disputes, instead of
37
There is a growing preference of states to conclude regional treaties, however, - Does not contain substantive rules on international investment
BITs still account for the largest network of IIAs. While they differ as the case - 153 states have ratified the ICSID Convention
may be, the ​general structure​ includes the following provisions - Whether the parties can make use of the options under the
a. ​PREAMBLE and GOALS: BITs begins with the goals of the treaty in convention depends on whether this dispute settlement is
the preamble provided in IIAs/the investment contract between the host state
· ​Formulated to encourage and to promote investment as well and the investor
as to create favorable conditions for investment - ​[Plural Arbitration Forums] There are substantial variations in the
· ​Recent BITs include non-economic statements in the choices provided by BITs to settle disputes between foreign
preamble concerning sustainable development investors and host states
b. ​SCOPE OF APPLICATION: Includes definition of an ​investor and - Many BITs offer investors the choice as to which arbitration
investments regime to use
· ​Contains specific provisions regulating the admission of - Most BITs permit inter alia arbitration before the World Banks's
investments and the right of establishment ICSID
· ​Provisions that regulate the right of admission provide a set
- ICSID offers the parties detailed procedural rules, institutional
rules for the investor's entry into a host state support, and secretarial assistance
· ​Right of establishment specifies certain requirements
- Other well known arbitration forums
regarding an investor's activity during the duration of the
- Permanent Court of Arbitration (PCA)
investment
- ​International Court of Arbitration of the International
c. ​SUBSTANTIVE INVESTMENT PROTECTION CLAUSES: Usually
Chamber of Commerce
contains provisions on
- Stockholm Chamber of Commerce
·​ ​Direct and indirect expropriation
- Investors also have the option of referring to ad hoc arbitration =
·​ ​FET
this gives the parties more flexibility (ie. Select applicable
·​ ​Full protection and security
arbitration rules, however, parties usually use the ​United Nations
·​ ​Discriminatory and arbitrary treatment
Commission for International Trade Law​ procedural rules)
· ​Protection on the basis of the ​Most Favored Nation ​and
National Treatment ​standards
Common Criticisms Against ISDS
·​ ​Free transfer payments
Underlying the World Bank mechanism is the desire to create an
d. ​DISPUTE SETTLEMENT MECHANISMS: Most BITs offer foreign
independent, depoliticized and effective dispute resolution system for
investor the possibility to seek recourse against the host state through
states and investors
an​ investor-state dispute settlement system (ISDS)
CRITICISM: ​However,​ the ISDS has received criticism for
- Most well known ISDS was established by the ​Convention on the
- Not representing the interests of the host states and the foreign
Settlement of Investment Disputes between States and Nationals
investors in a balance way
of other States​, which was created under the auspices of the
- ISDS tends to focus on the interests of investors and that it lack
World Bank in 1966
transparency and legitimacy
- Convention provides an institutional and procedural framework for
- Questions on the role and collection of scientific evidence in some
the settlement of investment disputes through arbitration and
investment disputes has
conciliation between foreign investors and host states
- Criticisms on substantive grounds:
38
- Whether and to what extent tribunals should have ○ Even though the above provision does not refer to the right to
authority to review the sovereign decisions of host states regulate, such general exception clause shows the intent of
directed at public welfare contracting states to enhance regulatory flexibility by allowing host
- Whether these claims are well grounded in the context of states to still regulate foreign investment without incurring
tribunal assessing the FET standards international liability for their actions.
- ​[Attempts at reform] Inclusion of an independent investment court ○ By inserting such general exceptions, states attempt to preserve
system or an appeal procedure regulatory flexibility in designated policy areas.
● The right is also included in IIAs’ preambular statements, specific
Right to Regulate provisions regulating particular public interests (such as environment or
Legal Basis of the Right to Regulate labor) and through exceptions in the context of the substantive provisions
● Based on the international legal principle of state sovereignty such as expropriation or FET (fair and equitable treatment).
○ Under IL, sovereignty has internal and external dimensions ● The right to regulate is sometimes incorporated through reference to the
○ The right to regulate is an expression of internal sovereignty protection of a specific public interest in the operative part of the treaty.
○ The right to regulate, in relation to sovereignty, includes the state’s ○ Example: “​Non-discriminatory regulatory actions by a Party that
right to: are designed and applied to protect a legitimate public welfare
■ prescribe laws that set boundaries of the public order of objectives, such as public health, safety, and the environment, do
the state on its territory not constitute indirect expropriations.​ ” (US Model BIT of 2012)
■ protect public interest of the citizens, such as public health ● The concept of the right to regulate is also found in specific provisions on
and safety corporate social responsibility.
■ Choose its methods for achieving its regulatory objectives ○ Example: “​Contracting Party should encourage enterprises… to
● In the context of investment law, investment treaties and arbitration cases voluntarily incorporate internationally recognized standards of
have resulted in limitations being placed on state sovereignty. corporate social responsibility in their practices…. These
○ For instance, disputes in public health have instigated a principles address issues such as labor, environment, human
discussion on the extent to which investment agreements are able rights, community relations, and anti-corruption.” ​(Benin-Canada
to limit a state’s internal sovereignty. BIT).
The Right to Regulate in IIAs ○ The incorporation of CSR standards suggests the increasing role
● The right to regulate has been implicitly specified through general and of the responsibilities of foreign investors in international
specific exceptions in IIAs, such as those relating to public morals and investment law.
health. ○ The above type of provision does not impose direct obligations,
○ Example of a ​general exception clause​: “​Nothing in this but recognizes the role of companies in furthering labor, human
Agreement shall be construed to prevent a Party from adapting or rights, and environmental issues.
enforcing measures (a) to protect human, animal, or plant life of ● Some provisions however are formulated as a positive obligation for the
health; (b) ensure compliance with laws and regulations that are state, such as the obligation not to lower environmental standards.
not inconsistent with the provisions of this Agreement; or (c) for ● There are provisions in some IAAs that have a direct reference to the right
the conservation of living or nonliving exhaustible natural to regulate.
resources.” ​(Art. 10, Canada-Peru BIT(2006)). ○ Example: “​In accordance with customary international law and
other general principles of international law, the Host State has the

39
right to take regulatory or other measures to ensure that ■ In ADC v. Hungary, the Tribunal stated that while a sovereign
development in its territory is consistent with the goals and State possesses the inherent right to regulate its domestic affairs,
principles of sustainable development, and with other legitimate the exercise of such right is not unlimited and must have its
social and economic policy objectives.”​ (Art. 20.1, South Africant boundaries. In this case, the rule of law, which includes treaty
Development Community (SADC) Model Bilateral Investment obligations, provides such boundaries. Therefore, when a State
Treaty Template of 2012). enters into a bilateral investment treaty, it becomes bound by it
○ The above provision provides qualification for the right to regulate, and the investment protection obligations it undertook therein must
such as it must be consistent with the principle of sustainable be honored rather than be ignored by a later argument of the
development. State’s right to regulate.
○ This provision emphasizes that the state’s right to regulate should ○ Other elements have been highlighted in several decisions which are
not be compromised in the course of complying with investment divided into three broad categories:
obligations. 1. States have the right to change and modify their laws as an
● Some provisions indicate that the right to regulate should be balanced integral part of their ability to regulate.
against the rights of investors under the treaty. This ensures that the a. This has been stressed by tribunals primarily in the
arbitrators shall not consider investment treaties purely as investor’s rights. context of an assessment of the legitimate expectations of
It reaffirms the Host State’s right to regulate investments in public the investor.
interests. b. This was emphasized by tribunals as a result of multiple
● In EU draft investment agreements, there is an explicit provision on the investors’ claims in which they have challenged regulatory
state’s right to regulate, which shall extend to legitimate policy objectives amendments made by host states.
and protection of public interest, such as health, social services, i. The reasoning employed by investors was that
education, safety, environment, privacy and data protection, and cultural such alterations have negatively affected their
diversity. investment and have therefore frustrated the
legitimate expectations of the investor.
The Right to Regulate in FET Investment Cases c. In Saluka v. Czech Republic, the tribunal stated “no
investor may reasonably expect that the circumstances
● In international investment cases, various tribunals have referred to the prevailing at the time the investment is made remain
right to regulate, especially in examining regulatory conduct in totally unchanged.”
expropriation and FET claims. d. In Parkerings v. Lithuania, tribunal has emphasised that “it
● Alvik - The right to regulate has increasingly been conceptualized in is each State’s undeniable right and privilege to exercise
investment jurisprudence as an inherent power of the state (police its sovereign legislative power. A State has the right to
powers), which is defined through a distinction between legitimate enact, modify or cancel a law at its own discretion ....”
non-compensable regulation and deprivatory regulation equivalent in effect e. In El Paso v. Argentina, the tribunal in assessing the FET
of expropriation or a breach of, for example, fair and equitable treatment standard stated that “the state has to be able to make the
standard in an investment treaty. reasonable changes called for by the circumstances and
● Several investment tribunals underlined that the right to regulate is cannot be considered to have accepted a freeze on the
provided by international law and that this right is limited by investment evolution of its legal system.”
obligations.

40
2. Importance of a special public interest of the state, e.g. health ○ Right to Regulate = ​The legal right exceptionally permitting the host state
protection, in the context of the right to regulate. to regulate in derogation of international commitments it has undertaken
a. In in Thunderbird v. Mexico, tribunal stressed that: by means of an investment agreement without incurring a duty to
“:\Mexico has in this context a wide regulatory ‘space’ for compensate
regulation; in the regulation of the gambling industry, ○ The right to regulate is a legal right derived from several sources
governments have a particularly wide scope of regulation ■ Conventional law (law found in investment treaties)
reflecting national views on public morals. Mexico can ■ Treaty-based exemptions (general exceptions applied to the entire
permit or prohibit any forms of gambling. It can change its treaty and exceptions to substantive provisions in the respective
regulatory policy and it has a wide discretion with respect standards of treatment)
to how it carries out such policies by regulation and ■ General international law
administrative conduct. ○ Under the first two categories, states incorporate the right to regulate in
b. In Philip Morris v. Uruguay, tribunal stated that “the IIAs primarily through the inclusion of specific exceptions to a particular
responsibility for public health measures rests with the standard of treatment or through a general set of exceptions that are
government and investment tribunals should pay great detached from the specific standard of treatment
deference to governmental judgments of national needs in ○ The third category refers to the right to regulate under customary
matters such as the protection of public health.” international law as reflected in the International Law Commission’s (ILC’s)
3. Precision in articulating the criteria for the state’s conduct to be Articles on State Responsibility
lawful. ■ Customary international law defences that are reflected in the ILC
a. Several tribunals have underlined that a state in Articles
exercising its right to regulate should not be ‘unreasonable ■ Practical availability of these defences to host states during
or inequitable in the exercise of its legislative power’ and investment arbitration
that its conduct should not ‘manifestly violate the
requirements of consistency, transparency, Public Interest Areas: ​Based on Titi’s research, there are several
even-handedness and non- discrimination’. interests to be protected in accordance with the right to regulate within IIAs
i. These criteria are certainly not exhaustive. 1. Essential state security - includes economic security, access to
However, these elements represent the basic strategic industries, essential interests in preserving political or
conditions, which are applicable to a state’s right economic survival and a balance, the preservation of international
to regulate as emphasised in investment peace and security and circumstances of extreme emergency
decisions. 2. Public order - Various meanings depending on the treaties but
○ To summarise, tribunals generally refer to the right to regulate in FET sometimes refers to riots and violence or measures taken to
cases. Primarily, tribunals have reaffirmed that states have the right to ensure public health and safety
regulate which is​ ​limited by the obligations of states under IIA provisions. 3. Regulations taken in the public interest - Refers to the general
welfare qualified by a list of specific interests or individual interests

The Right to Regulate in Academic Literature Titi’s Contribution


The Right to Regulate in International Investment Law (Titi) - Outlines the different applications and implications of the right to
regulate through exceptions found in treaties, or t​he extent to

41
which general international law or arbitral jurisprudence may or not - Humanisation of international law affects the right to regulate in
accommodate state regulatory flexibility general international law by adding the element of the underlying
- Makes distinction between the explicit right to regulate and the human rights presumptions
implicit right to regulate - Mouya’s definition of the right to regulate includes a broad range of state
- Implicit right to regulate = ​Evaluated on the basis of priorities (socia, economic, political( in the interest of which states have a
decisions of arbitral tribunals right to regulate
- She investigates whether arbitral tribunals have implicitly - She argues that by exercising the right to regulate, states’s should not be
acknowledged the state’s right to regulate, even in the made liable under international rules protecting foreign investments
absence of a specific treaty provision or defences - Note that Titi only referred to the absence of a duty to compensate
provided by customary international law as outlined in her definition of the right to regulate
- She concluded that tribunals have not been eager to take - Distinction is relevant as according to the case of ​Biwater v.
into account the state’s right to regulate, especially in FET Tanzania, ​liability can be established without a duty to
standard and expropriation claims compensate
- The implicit right to regulate is not borne out in practice
and explicit treaty exceptions are necessary where states
wish to ensure a modicum of policy space Principal Difference Between the Two Approaches
- Titi: ​Right to regulate as a relevant juridical concept that
International Investment Law and the Right to regulate: A Human constitutes an exception to the obligation to project
Rights Perspective (Mouyal) investments
- Right to Regulate = ​Affirmation of the sovereign right for states - Mouyal: ​From a human rights perspective, the right to
to choose their political, social, and economic priorities- within regulate can take priority over the investment obligations
certain limits- through the adoption of legislation and of states
administrative practices without violating international rules and
protecting foreign investments Elements of the Right to Regulate
- Argues that the human rights legal regime have altered the ○ First, ​the right to regulate is limited by the state’s obligations under
concept of sovereignty international law such as the obligation to provide fair and equitable
- Alteration has formed an ​underlying assumption that treatment (FET) under an IIA.
states can make binding commitments (ie. by concluding ○ Second, ​the right to regulate is an integral part in balancing the rights and
BITs) provided that they can still take measures to comply obligations of investors and the investments of host states.
with international obligations to make certain policy ■ [Discussion] The right to regulate has two dimensions. First, from
prioritizations (under the duty to regulate) the perspective of investors, in some cases where the state
- The right to regulate is occasionally transformed into a ​duty to exercises its regulatory authority, which may undermine the
regulate ​when the human rights context is at stake stability of the investment climate and generate adverse effects for
- She refers to the obligations under the ICESCR investments. Second, from the perspective of the state, however,
- Under the ICESCR, a state has the ​duty to make certain in addition to fulfilling its obligations under the applicable IIA, the
minimum policy prioritizations state has a prerogative to ensure public welfare for its population
through the exercise of its regulatory authority

42
○ Third, ​the right to regulate might be specified by the inclusion of the public measures reflect a reasonable attempt to address a public health concern
interest and/or legitimate policy objectives in IIAs. and are taken in good faith.
■ [Discussion] The public interest usually denotes a state’s ● On police power: conditions for a valid exercise thereof
regulation taken in the interest of the “welfare of the general (a) Must be a ​bona fide exercise of regulatory powers for the purpose
public”. Consequently, in some IIAs, contracting parties tend to of protecting public welfare
specify what is referred to when reference is made to the public (b) Must be ​non-discriminatory
interest. (c) Must be ​proportionate
■ In order to specify particular public interests, in a number of IIAs ● On indirect expropriation: To succeed in a claim of indirect expropriation,
states have inserted exceptions for particular - or a group of an investor must show that it has been ‘substantially deprived’ of the
particular - public interest that contracting parties have intended to value, use or enjoyment of its investment – not simply that it has suffered
omit from the scope of investment protection. Certain public some loss.
interests such as the protection of the environment and health, ● On FET: ‘the requirements of legitimate expectations and legal stability as
labor standards and Corporate Social Responsibility (CSR) are manifestations of the FET standard do not affect the State’s rights to
public areas that have frequently appeared in recent treaties exercise its sovereign authority to legislate and to adapt its legal system to
○ Fourth, ​another element that is applicable includes the consequences changing circumstances.’
which result from exercising the right to regulate, namely in which
circumstances, a state, when exercising its right to regulate, is or is not FACTS
liable towards an investor or does not have an obligation to pay Uruguay has one of Latin America’s highest smoking rates. Against this
compensation background, Uruguay has engaged in important anti-smoking policy measures and
adopted two principal regulations:
II. Case 1. 2008 Single Presentation Requirement regulation​: provides that
tobacco manufacturers could no longer sell multiple varieties of their brand
and required health warnings to be printed on 50% of the area of cig
packages and
Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos
2. The 80/80 Regulation of 2009​: under a presidential decree which
S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7 provides that health warnings cover 80% of the packaging instead of 50%.

Award dated: July 8, 2016 In February 2010, three subsidiary companies of Philip Morris International (PMI)
Applicable treaty: Switzerland–Uruguay Bilateral Investment Treaty (BIT) initiated an ​investment arbitration claim at the International Centre for the
Forum and applicable procedural rules: International Centre for Settlement of Settlement of Investment Disputes (ICSID), an arbitration panel of the World Bank.
Investment Disputes (ICSID), ICSID Rules of Procedure for Arbitration PMI alleged that ​two of Uruguay’s tobacco control laws ​mentioned above
Proceedings violated the Bilateral Investment Treaty (BIT) with Switzerland. Claimant claims
the ff: (1) That the 2008 regulation substantially affected the company's value
Key takeaways: since it had to pull out 7 of its 13 product variants and (2) that the 2009 regulation
● The tribunal affirmed the police power doctrine and set out that a state wrongfully limited PM's right to use its legally protected trademark by infringing on
does not need to prove a direct causal link between the measure and any its intellectual property rights and thus further reduced the value of its investment.
observed public health outcomes. It stressed that it is sufficient that

43
PMI brought the claim after legal challenges in Uruguay’s domestic courts but the on this issue. The main issue over the trademarks was what rights a
Philip Morris subsidiaries had failed. registered trademark accords its owner. The Claimants argued that they
had a right to use those trademarks unconstrained by such regulations.
The Respondent asserted that a trademark confers on the holder an
SELECT LEGAL ISSUES & RULINGS exclusive right to challenge a third party attempting to register or use the
same trademark.
(1) Support From the “International Public Health Community” and the Role ○ First, the Tribunal noted that nothing in the Paris Convention
of the Framework Convention on Tobacco Control (FCTC) states that a trademark grants a positive right to use and agreed
● The participation of the WHO, the Pan American Health Organization that a better interpretation is that the exclusive right to use is
(PAHO) and the FCTC Secretariatby submitting amicus briefs in these simply the other side of the coin of the “right to prevent any person
proceedings is interesting to highlight, since the evidence provided by from performing”.
these entities was crucial for the tribunal’s assessment on the ○ Second, the Tribunal, considering whether a trademark is a
effectiveness and reasonableness of the disputed measures. property right under Uruguayan law conferring on its holder the
● As the WHO and FCTC Secretariat noted, large graphic health warnings right to use the trademark concerned, found that ​nothing supports
are an effective means of informing consumers of the risks of tobacco the conclusion that a trademark amounts to an absolute,
consumption and of discouraging tobacco consumption. Therefore, the inalienable right to use that is somehow protected or guaranteed
submissions supported that the Uruguayan measures are effective means against any regulation that might limit or restrict its use. The
of protecting public health Tribunal concluded that ownership of trademark confers an
● The award underscored the importance of the WHO FCTC in setting exclusive right to exclude third parties from the market so that only
tobacco control objectives and establishing the evidence base for the trademark holder has the possibility to use the trademark in
measures commerce, subject to the State’s regulatory power​.

(2) Ownership of the trademarks under Uruguayan law governing intellectual (3) Indirect expropriation
property ● PM argued that the regulations constituted an indirect expropriation of its
● The Claimants’ expert has opined that product variants fall within the brand assets, including intellectual property and goodwill associated with
scope of protection because they maintain the essential distinctive each of its brand variants
features and only differ slightly with respect to non-essential elements. ● Tribunal agreed with Uruguay that the measures could not constitute an
Therefore, the Marlboro Gold is substantially identical to the registered expropriation mostly because they were a legitimate exercise of its
Marlboro Lights trademark. sovereign police power to protect public health. First, it confirmed that the
● The Respondent’s expert stated that “unlike other legal systems, the measure did not have the effect of substantial deprivation of the
Uruguayan system does not provide protection for derivative trademarks investment since Philip Morris was able to continue its business of selling
(or trademark variants) or for trademark families” and that Marlboro Gold tobacco products in Uruguay.
is an alteration of the distinctive character of Marlboro Light. ○ “Indirect expropriation" - requires a substantial deprivation of the
● The Tribunal assumed, without deciding, that the trademarks continued to value, use, or enjoyment of the investor's investments.
be protected under the Uruguay Trademark Law. The Tribunal has taken ○ Tribunal: “as long as sufficient value remains after the Challenged
note that the Law did not deny protection to alterations based on the first Measures are implemented, there is no expropriation’ and that ‘a
registration, but decided it is not necessary to reach a definitive conclusion partial loss of the profits that the investment would have yielded

44
absent the measure does not confer an expropriatory character on
the measure” (4) Fair and Equitable Treatment
● Second, even if such a deprivation had occurred, Uruguay validly ● PM further argued that the measures were arbitrary, since they failed to
exercised its police powers to further support its finding that there was no serve a public purpose but caused substantial harm, and thus breached
expropriation. The award makes it very clear that public health policy the FET standard.
relates to heightened public welfare concerns. ● Tribunal held that the measures (1) were not arbitrary and (2) PM could
○ Tribunal: that it was sufficient for the purposes of defeating the not have any legitimate expectations that Uruguay would not impose
expropriation claim to demonstrate that a measure was ‘directed’ stricter tobacco regulation.
to a public health end and ‘capable of contributing to its ● The Tribunal held that a measure was ‘reasonable’ at the time of adoption
achievement would not be arbitrary. This was to be determined by reference to whether:
● Applying these principles to the 80/80 Regulation, the Tribunal held that 1) the measure was an attempt to address a real public health concern, 2)
‘there is not even a prima facie case of indirect expropriation..THe measure taken by the State was ‘not disproportionate’ to that concern, 3)
Marlboro brand and other distinctive elements continued to appear on measure was adopted in good faith.
cigarette packs in Uruguay, recognisable as such’. Limiting the space ● The tribunal made reference to the margin of appreciation as developed in
available for such purpose on the front and back of the pack to 20% of the the jurisprudence of the European Court of Human Rights. In particular,
external surface ‘could not have a substantial effect on the Claimants’ the tribunal held that the responsibility for public health measure rests with
business since it considered only a limitation imposed by law on the the government and that investment tribunals should pay great deference
modalities of use of the relevant trademarks. to governmental judgments for national needs in matters such as the
● More importantly, the Tribunal concluded that the regulations have been protection of public health.
adopted in fulfillment of Uruguay’s national and international legal - Substantial deference was required for matters of public policy
obligations for the protection of public health. The measures also satisfied regarding ‘acknowledged and major public health problems; only
the conditions of the police power doctrine (​bona fide exercise of measures that were ​entirely lacking in justification or ​wholly
regulatory power for the protection of pubic welfare, non-discriminatory, disproportionate​ would breach FET
and proportionate​) as they were adopted in good faith and for the purpose ● Referring to the Glamis Gold v. United States award,[2] the tribunal held
of protecting public health and were non-discriminatory and proportionate. that the sole inquiry for the tribunal is whether or not there was a manifest
● It was noted that the expropriation provision contained in the lack of reasons for the legislation
Switzerland–Uruguay BIT does not include a reference to the police power ● For the 2008 regulation, the tribunal found it to be reasonable because it
of states. However, the tribunal considered that the provision must be was an attempt to address real public health concerns. As to the 2009
interpreted in accordance with Article 31(3)(c) of the Vienna Convention on regulation, the majority further underlined the importance of deference that
the Law of Treaties (VCLT), which requires that the provision must be has to be given to the state when it has to balance between conflicting
interpreted in light of “[a]ny relevant rule of international law applicable to considerations and held that it was a reasonable measure adopted in good
the relations between the parties.” faith to implement an obligation assumed by the state under the FCTC.
● The tribunal also noted that the standard of proof required to show that a
measure is an exercise of police powers - which can broadly be described (5) FET in relation to legitimate expectations for a stable regulatory
as a rational basis standard. It is enough that the measure is ‘directed to environment as regards tobacco regulations
achieving the aim of reducing smoking and ‘capable of contributing to its
achievement’.

45
● Also claimed that Uruguay breached the FET standard because its ● Tribunal found that Uruguay’s large graphic health warnings were
legitimate expectation that the regulatory environment would not drastically designed to implement the WHO FCTC, based on an internationally
change had been frustrated accepted principle of having large health warnings to inform consumers of
● The tribunal dismissed these arguments and stated that legitimate the risks of smoking, and supported by behavioural research regarding the
expectations could not exist when general legislation changes. In effects of the increased warning size on thoughts of quitting.
particular, such changes were not prevented by the FET standard “if they ● It found that the WHO FCTC and its Guidelines, while leaving the final
did not exceed the exercise of the host State’s normal regulatory power in determination of the size of health warnings to each individual
pursuance of a public interest and did not modify the legal framework government, recommended that health warnings be as large as possible
relied upon by an investor at the time of its investment ‘outside of an ● Moreover, beyond the principle in the WHO FCTC that the health warnings
acceptable margin of change’” should be ‘large’, the ultimate size of health warnings was a matter for
● On the contrary, the tribunal found that in the light of the “widely accepted government, unless the limit set was ‘entirely lacking in justification or
articulations of international concern for the harmful effect of tobacco, the wholly disproportionate’.
expectation could only have been of progressively more stringent ● Hence, the 80% requirement ‘was a reasonable measure adopted in good
regulation of the sale and use of tobacco products" faith to implement an obligation assumed by the State under the FCTC’.
● An investor can only rely on legitimate expectations if ​specific
undertakings were made by the host State to that investor. Legitimate (8) Last Few Notes
expectations do not derive from generally applicable legislation. ● Public health measures fall within the police powers doctrine, and are
therefore not an expropriation provided that they are non-discriminatory,
(6) Denial of Justice proportionate, and taken in good faith: ‘The Challenged Measures were
● The Claimants argued that a denial of justice may result from a “refusal to taken by Uruguay with a view to protect public health in fulfilment of its
judge”, a breach of due process, arbitrariness, gross incompetence, or a national and international obligations. For reasons which will be explored
pretense of form. Neither bad faith nor malicious intent are required. The in detail in relation to claims under Article 3(2) of the BIT, in the Tribunal’s
Respondent broadly agreed, but emphasized that there is a high threshold view the Challenged Measures were both adopted in good faith and were
to prove a denial of justice requiring clear and convincing evidence of an nondiscriminatory.’
egregious conduct of judicial proceedings, resulting in an outrageous ● The measures’ public health objective was important to the determination
failure of the judicial system and the exhaustion of all reasonably available of whether or not they were ‘arbitrary’ under the FET standard
and potentially effective local remedies, including constitutional and ● ‘Manufacturers and distributors of products that are harmful to health, such
extraordinary remedies. as cigarettes,’ can have no expectation that new and more onerous
● The Tribunal observed that for a denial of justice to exist under regulations will not be imposed’
international law there must be “clear evidence of … an outrageous failure ● Uruguay’s rights (and duties) to legislate to protect public health meant
of the judicial system” or a demonstration of “systemic injustice” or that that the claimant had no legitimate expectations that the use of their
“the impugned decision was clearly improper and discreditable” and that trademarks would be guaranteed against regulation to ‘prevent, limit or
“grave procedural errors” may result in a denial of justice depending on the condition the commercialization of a product or service’
circumstances of each case. ● A margin of appreciation applies to state regulatory measures, ‘at least in
contexts of public health’
(7) With Regard to the 80/80 Regulation
​DISPOSITION

46
Tribunal DISMISSED all the claims of PM and upheld the legality of the two
tobacco control measures enacted by Uruguay for the purpose of protecting public
health. It ordered Philip Morris to bear all arbitral costs and to pay Uruguay USD 7
million as partial reimbursement of the country’s legal expenses.

Sources:
https://cf.iisd.net/itn/2018/10/18/philip-morris-v-uruguay/
https://www.mccabecentre.org/downloads/Knowledge_Hub/McCabe_Centre_pape
r_on_Uruguay_award.pdf
https://www.transnational-dispute-management.com/downloads/16731_case_repo
rt_phillipmorris-uruguay-award.pdf

47