SIIL Finals Reviewer
framework in this case? After the UK joined the EU,
TOPIC 1: Treaty Withdrawal
Case 1: Miller v. Secretary of State (BREXIT)
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 –
Article 50 – of the Treaty on European Union (TEU). However, this decision was
challenged in a judicial review proceeding, in which the applicants argued that
legislative approval was necessary to empower the executive to do so.
Issue: ​Does the executive branch have unilateral power to withdraw from TEU?
NO, the treaty withdrawal can only be effected with legislative authorization.
Ruling:
● The UK does not have written regulation on treaty ​withdrawal ​(but
it has on treaty making), nor had conventional regulation developed
through practice.
● Traditionally, treaty-​making (case here is withdrawal) capacity has
been considered to be part of the executive prerogative and, thus,
can be exercised without legislative approval, though there is a
requirement of parliamentary notice prior to treaty ratification.
Treaty ​withdrawal is equally part of the prerogative, and therefore
in principle can be ​exercised unilaterally​ by the executive.
● Exception (so legislative authorization would be needed) and the
first reason why treaty withdrawal requires legislative authorization:
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)
○ Why would there be such change in UK’s constitutional
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
constitutional arrangements of the UK required
parliamentary approval.
● Second reason why treaty withdrawal requires legislative
authorization: loss of certain individual rights vested in domestic
law that would be removed by virtue of the withdrawal
● Note that acte contraire theory was not used. In short, the
requirement of parliamentary approval of withdrawal did not turn on
the fact that Parliament had ratified the relevant treaties but, rather,
on the impact ​that withdrawal would have on the content of
domestic law
● Commentary by an assigned article: Miller case can apply to
withdrawal from treaties other than the TEU, though the r​ange of
such treaties will likely be narrow​, comprising treaties the
withdrawal from which will result in a ‘fundamental change’ to
domestic law or the removal of ‘vested rights’ of individuals.
Withdrawal from such treaties will require parliamentary approval.
Otherwise, the executive can, according to domestic law, exit
treaties without the involvement of the legislature. In principle, this
is ​not a sui generis rule concerning only withdrawal from the EU,
but its application is likely to be limited given the high threshold
established by the Court for the need for parliamentary approval of
treaty withdrawal. Further, it is likely that the judiciary will have a
significant role to play in future cases defining the boundaries of this
rule.
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Facts:
This case involves the withdrawal of South Africa from the Rome Statute of the
International Criminal Court (ICC). It stems from its refusal to arrest and surrender
Sudanese President al-Bashir to the ICC, who visited the country for an African
Union summit. al-Bashir is accused of serious international crimes (war crimes,
crimes against humanity, and genocide) all related to the Darfur region of Sudan.
The South African government, through the Minister of International Relations,
signed a notice of withdrawal and deposited it with the Secretary-General of the
UN, in accordance to Art. 127(1) of the Rome Statute. This was the sole act of the
national executive and without prior parliamentary approval. The Minister also
tabled in parliament a bill repealing the Implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002 (Implementation Act), which is the
domestic law giving effect to the Rome Statute in South Africa.
Democratic Alliance, a political party and the largest minority party in parliament,
seeks to declare such notice of withdrawal of the executive as unconstitutional. On
the other hand, government respondents argue that there is no explicit provision in
the Constitution which requires prior parliamentary approval in terms of
withdrawing from an international agreement.
Issues:​
Whether it is constitutionally permissible for the national executive to deliver
a notice of withdrawal from an international treaty without (a) prior
parliamentary approval (primary issue); and (b) repealing the domestic law
giving effect to such treaty (ancillary issue)? – NO
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.
In construing s 231 of the Constitution (see Ratio for its content), which governs
the manner in which international agreements are made binding on South Africa, it
is important to note the following:
A notice of withdrawal is the equivalent of ratification, which requires prior
parliamentary approval in terms of s 231(2). The act of signing a treaty and the act
of delivering a notice of withdrawal are different in their effect. The former has no
direct legal consequences, while the latter has concrete legal effects in
international law, as it terminates treaty obligations, albeit on a deferred basis in
the present case.
It is trite that where a constitutional or statutory provision confers a power to do
something, it necessarily confers the power to undo it as well. Since the power to
bind the country to the Rome Statute is expressly conferred on parliament,
therefore, it must be parliament which has the power to decide whether an
international agreement ceases to bind the country.
Here, the national executive did not have the power to deliver the notice of
withdrawal without obtaining prior parliamentary approval and repealing the
Implementation Act. Thus, the sole act of the national executive violated s 231(2)
of the Constitution, and breached the separation of powers doctrine enshrined in
that section.
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
heartland of the national executive in the exercise of foreign policy, international
relations and treaty-making, subject to the Constitution.
In sum, the notice of withdrawal and the decision to deliver the notice of withdrawal
are unconstitutional and invalid. They are ordered to revoke the said notice of
withdrawal.
Treaty Withdrawal (based on the article)
So with the discussion of the case studies, the pressing question is: what happens
if a state withdraws from an international treaty in a manner that complies with the
applicable international legal requirements, but violates its domestic rules on treaty
withdrawal? Will such a treaty withdrawal still take effect in international laws.
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This was the main question that the drafters of the VCLT debated and discussed.
Strong disagreement arose between those who suggested that international legal
authority was vested solely in the executive, regardless of domestic constitutional
rules, and those who insisted that international law must protect domestic and,
particularly, democratic – allocation of internal treaty-making authority. However,
the discussion only addressed this question in relation to the joining of a treaty,
neglecting the context of treaty withdrawal. Thus, we must first look into the
analysis of the VLCT approach in joining a treaty that may provide insights to the
exercise of treaty making capacity to withdraw from treaties.
​Role of Domestic Law in Joining treaties
The proper relationship between international and domestic legal requirements
when joining a treaty has been the subject of debate and disagreement for many
years. There are two main rival theories that revolves such question:
Constitutionalist theory​ and ​Internationalist theory​.
In relation to joining a treaty, the Vienna Convention on the Law of Treaties (VCLT)
drafters considered that international law must effectively balance two key
imperatives in relation to states’ consent to join treaties: the ​security and
efficiency of treaties ​and ​state sovereignty​.
1. Principle of treaty security - emphasizes the need for clarity in the
international legal requirements for treaty making so that states may know
when they have undertaken binding obligations. It prioritize the continuity of
the treaty and its binding effect
- Thus, it suggest that in joining in a treaty, States must be able to rely on
the ostensible authority of the organs accepting binding obligations. Thus,
the treaty must be binding amongst them.
2. Sovereignty principle ​- requires respect for the state’s internal allocation of
treaty-making authority and, ‘forbid[s] the acceptance of the view that a state
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’
Accordingly, there are different ways in which the balance between these two
principles can be struck. Thus, there are 2 main rival theories that aims to balance
or favors one over the other. And these are:
1. Constitutionalist Theory ​- also known as the theory of international
relevance, asserts that only domestic law can determine which state
representative has the authority to bind the state to international treaty
obligations and, therefore, it favours the principle of sovereignty.
If an actor other than that empowered by domestic law attempts to
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.
Thus, rules of internal law are argued to be incorporated in the
international law.
It protects the state’s sovereign determination of the allocation of
treaty-making competence and encourages democratic decision-making
within the sphere of the state’s international relation. ​Thus, the primary
result of the constitutionalist theory would be the international
invalidity of a treaty consented to in violation of domestic rules. ​An
example of this is when if the executive failed to obtain the constitutionally
required legislative authorization for ratification, it follows that the treaty is
null and void.
Consequently, this theory prioritizes state sovereignty over treaty security.
Two well known rapporteurs support this theory namely: Brierly and
Lauterpacht. ​Lauterpacht was of the view that the constitutionalist
theory must be tempered by the ‘weighty character’ of
considerations in favour of the security of treaties​. Thus, Lauterpacht
proposed what he described as a compromise between the
constitutionalist and internationalist positions, with the constitutionalist
approach being the default, subject to (perhaps characteristically)
elaborate exceptions:
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
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 2. That the contracting state would be estopped from invoking the
invalidity of its consent if it had failed to do so over a ‘prolonged
period’ or had ‘acted upon or obtained an advantage from’ the
treaty
3. A state that successfully invoked the invalidity of its consent on
this basis must compensate other treaty parties for any damage
resulting from the invalidity of the treaty, if the other parties were
not aware of the relevant constitutional limitation.
4. And, in cases where the unconstitutionality was the subject of a
dispute, this must be submitted to the International Court of
Justice (ICJ) or other international court for resolution.
Thus, according to Lauterpacht, only a violation of a constitutional
provision, not of other domestic law provisions, could lead to
invalidity of treaty consent and only if the state had acted promptly
and in good faith in invoking such a violation.
2. ​Internationalist Theory – also known as evidence theory. ​Under this,
theory, International law itself establishes uniform rules determining the state
authority that can validly exercise the state’s consent for the purposes of
international law, favouring the principle of treaty security. Thus, if consent to a
treaty is expressed by that authority – namely, the state executive – in
compliance with the rules of international law​, the state cannot invalidate
that consent by pointing to a violation of its domestic law rules​. ​The
domestic rules are simply irrelevant to the binding force of a treaty on
the international plane​.
States placed their confidence in the other government, provided that it
was effectively exercising power. In so doing, they applied the rule of
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
basis of both principle and practicality. First, as explained above, is the
need to protect the security of treaty relations. Second, it is argued that
states are obliged to act in good faith in their treaty relations. It is therefore
the responsibility of state representatives themselves to ensure that they
are acting in compliance with their own domestic law; if they fail to do so,
that is a matter for internal resolution, not a matter for international law.
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
whether treaty consent has been validly exercised should the
constitutionalist approach be taken. Fourth, it is suggested that it would
constitute unlawful interference in the state’s domestic jurisdiction to query
whether the state’s representatives have acted in compliance with
domestic law in purporting to join a treaty. Finally, the constitutionalist
theory would allow states to knowingly enter treaties in violation of their
domestic law and later opportunistically deny the validity of their
obligations, relying on this violation of domestic law.
According to Fitzmaurice’s draft articles (he is a supporter of
internationalist theory), any treaty consented to by, or with the approval of,
the state executive was binding on the state in the international sphere,
regardless of domestic rules on treaty making, without exception.
On the other hand, Waldock’s reports as special rapporteur formed the
basis for the draft articles ultimately adopted by the ILC as the draft
Convention on the Law of Treaties and subsequently adopted as the VCLT
in 1969. Waldock proposed a less strident version of the internationalist
theory than that of Fitzmaurice, conceding ‘the importance of constitutional
limitations on treaty-making power’. His first draft contained the following
assumptions:
1. Treaties concluded by certain state representatives – namely, the head
of state, head of government, and foreign minister, or other
representatives authorized by full powers – were internationally valid,
regardless of the provisions of domestic law.
Waldock proposed that a state that had joined a treaty in a manner that
violated its constitutional law be entitled to revoke its consent with
agreement of the other treaty party/parties, if the treaty was already in
force. If the treaty was not in force, it was proposed that the state be
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 entitled to retract its consent simply upon notification to the depositary or
other treaty party/parties.
The VCLT Compromise
Waldock’s moderated internationalist position found majority agreement in the
ILC’s position, though significant changes to his formulation resulted from
subsequent discussions in the commission. Draft Article 43 was proposed by the
ILC: ‘A state may not invoke the fact that its consent to be bound by a treaty has
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
law was manifest.
However, this was subject to further extensive debates and arguments. Thus, two
main amendments were introduced:
1. The category of relevant domestic law was restricted to include only internal
laws ‘of fundamental importance’, indicating that violations of rules of minor
importance, such as technical formalities of ratification, did not vitiate treaty
consent.
2. To allay concerns about the vagueness of the manifest violation exception, a
definition of the concept was included.
Thus, the final text was adopted as Article 46 of the VCLT, which reads:
1. ​A state may not invoke the fact that its consent to be bound by a treaty
has been expressed in violation of a provision of its internal law
regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance. 
 regardless of any consideration of domestic legal requirements, favouring the
2. A
​ violation is manifest if it would be objectively evident to any state
conducting itself in the matter in accordance with normal practice
and in good faith. 
 competence to conclude treaties, it was voidable.
Thus, Article 46 establishes the internationalist approach as the default
position in international law, assuming the validity of treaty consent given by
a state representative with ostensible authority to do so. Such ostensible
authority is regulated by a separate provision on ‘full powers’, which is
Article 7 of the VLCT which provides that:
Article 7:
1. A person is considered as representing a State for the purpose of adopting or
authenticating the text of a treaty or for the purpose of expressing the consent of
the State to be bound by a treaty if:
(a) he produces appropriate full powers; or (b) it appears from the practice of the
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
powers.
2. In virtue of their functions and without having to produce full powers, the
following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the
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
accrediting State and the State to which they are accredited; (c) representatives
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
that conference, organization or organ.
Thus, it provides that authority of heads of state, heads of government, and foreign
ministers to bind their state to a treaty without exception ‘by virtue of their
functions’, and other representatives to do so upon production of full powers.
States are therefore entitled to rely on consent given by these representatives,
principle of treaty security. Art 46 also provides for limited exception, recognizing
the importance of constitutionalist concerns, that if the consent was given in
‘manifest violation’ of an internal rule of fundamental importance concerning the
In order to be manifest, the violation must be objectively evident’ to any state
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,
Article 46(1) makes clear that it is only the state whose domestic law was
violated that can invoke this basis for invalidity.
Thus, two basic elements in Article 46 are considered:
1. Nature of the violation of domestic law - the violation of domestic law must
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
the other States.
However, this is somewhat problematic since the States has no duty to be aware
of other state’s internal laws. The rule will be considered to be sufficiently
publicized if other treaties parties have been given a ‘specific warning’ of the
domestic limitations on treaty-making capacity. Otherwise, the domestic rule
limiting the authority to conclude treaties must be the subject of common
knowledge. In addition, in order for it to be reasonable to expect other states to be
aware of the violation, ​the rule in question must be clear at the time that the
state gave its consent to be bound to the treaty.
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
rules other than constitutional rules are qualified as being of fundamental
importance to the domestic legal system in question. These fundamental rules
can be procedural or substantive and can be codified or based on practice.
It is largely accepted that this provision now represents customary
international law. As such, it has been accepted that, in the context of
joining treaties, the violation of domestic law can invalidate treaty consent
under international law, upon invocation by the state, even if given by
representatives with ostensible authority to bind their state under
international law.
The Role of Domestic Law in the International Law of Treaty Withdrawal
It has been established that there is a narrowly defined, but significant,
requirement in international law to comply with domestic law when joining treaties
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
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
applicable in the context of treaty withdrawal.
Established International Law Requirements for Valid Treaty
Withdrawal
The VCLT sets out several grounds on which states are entitled to exercise a right
of withdraw from treaty. According to Article 67, an instrument of withdrawal must
be in writing and must be signed by the head of state, head of government, or
minister of foreign affairs. If signed by another state representative, that
representative may be requested to produce full powers. If these procedural
requirements are not satisfied, the instrument of withdrawal will not take effect
under international law. However, unlike the provisions on joining treaties​, these
procedural requirements do not contain an equivalent to the manifest
violation exception in Article 46 of the VCLT nor any other reference to
domestic legal allocation of treaty withdrawal authority.
As can be observed, only a very few number of commentators address the
question of the international legal impact of domestic legal restrictions on the
executive’s authority to withdraw from treaties, and, among those who do, there is
nearly universal agreement that domestic legal requirements are irrelevant to the
international validity of a state’s treaty withdrawal. Apart from these few authors,
the widespread state practice and commentary apparently assumes the
international validity of instruments of withdrawal duly signed by authorized state
representatives. In addition there is no mention of the domestic authority to
withdraw from treaties appears to be made in state’s instrument of withdrawal, nor
do treaty depositaries appear to inquire into such authority.
Thus, it can be considered that the authority of the executive to withdraw the state
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
consent, the very same violation would be irrelevant in the case of treaty
withdrawal.
Analogical Application of the Manifest Violation Exception to Treaty Withdrawal
VCLT provisions do not expressly contain any limit on the authority of the state’s
international representatives to withdraw from treaties. Such unqualified authority
would enable the executive to ignore any domestic limitations on its 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
bound by a treaty, this should also be the case for the decision to end that
consent.
As such, the author moves that Article 46 of the VCLT should be interpreted to
apply analogically to state representatives’ power to withdraw from treaties in
international law. Thus, a manifest violation of an internal rule of fundamental
importance should potentially invalidate a state’s treaty withdrawal internationally
as well as domestically.
a. Textual Interpretation – ​Despite the absence of an explicit requirement, In its
commentary on the final draft articles, the ILC ‘considered that the rule
concerning evidence of authority to denounce, terminate, etc., should be
analogous to that governing “full powers” to express the consent of a state to
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
treaties. Thus, the rules in joining the treaty should also be applicable in the
treaty withdrawal.
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
above, Article 7 sets out the requirement of production of full powers in the context
of joining treaties, while Article 67 does so in relation to treaty withdrawal. The
definition of ‘​full powers’ in Article 2 provides that: ‘“Full powers” means a
document emanating from the competent authority of a state designating a person
or persons to represent the state ... for expressing the consent of the state to be
bound by a treaty, or ​for accomplishing any other act with respect to a treaty​’. This
definition clearly includes acts concerning both the conclusion and termination of
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
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
by Article 67 to withdraw from a treaty should be limited in the same manner
by the Article 46 manifest violation exception as those empowered by Article
7 to join a treaty.
b. Normative principles justifying the application of the manifest violation
exception to treaty withdrawal - ​VCLT drafters sought to balance two key
principles normatively underpinning the law on treaty consent: respect for state
sovereignty and the security of treaties. In relation to the international law on
concluding treaties, the balance was struck advancing the principle of treaty
security, with a limited exception to ensure respect for the state’s sovereign
allocation of its treaty-making competence. ​In the context of treaty
withdrawal, however, the VCLT currently tips the scale in favour of the
principle of treaty security, with no counterbalancing to account for
sovereignty concerns
This unjustified overemphasis on treaty security can be corrected through the
proposed expansive interpretation of the manifest violation exception, bringing the
two principles into appropriate balance in both joining and leaving treaties.
a. State Sovereignty in treaty withdrawal - It is apparent that
the importance of respecting the state’s exercise of its
sovereign right to allocate treaty-making competence applies
equally to the acts of joining and leaving treaties
As noted above​, the power to join and leave treaties are two
aspects of the same treaty-making capacity of the state​. Thus,
there is no justification for giving international legal weight to the
state’s sovereign allocation of its treaty-making power to limit the
executive’s unilateral authority when a state joins a treaty, but
ignoring the very same concerns when the state leaves the treaty.
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It is furthermore clear that a state’s sovereign choice to determine
its international and domestic legal and policy commitments is
made just as much through leaving existing treaties as joining new
ones – as is increasingly emphasized by referenda, judicial review
actions and electoral campaigns focused on leaving treaties to
which the state belongs.
Thus, when joining treaties, constitutional rules are protected by a
variety of procedural requirements that will ensure, or at least
encourage, the state to go back to its own internal processes for
approval of the act. In contrast, when withdrawing from a treaty,
international law has not established any such procedures.
b. Security of treaties in treaty withdrawal​- The lack of clarity
of domestic legal requirements and the onerous burden it
would impose on states to require that they know the
treaty-making rules of foreign states ‘might become a source
of endless complications and disputes’. ​Therefore,
international law must establish, as the default position,
that treaty consent given by those with ostensible
authority under international law must have binding
international legal force. These same considerations hold
true for the context of treaty withdrawal.
However, while the executive is given ostensible authority to bind
their state when joining treaties, limited by the manifest violation
exception, the executive is given absolute international legal
authority to withdraw their state from treaties. This overemphasis
on the principle of treaty security in relation to treaty withdrawal
powers, when compared to powers to conclude treaties, cannot be
justified
Thus, recognizing a requirement to comply with domestic law
when withdrawing from treaties would favour this crucial aspect of
the principle of treaty security since this would provide an
additional barrier to withdrawal – the failure to comply with which
would mean that the state’s withdrawal could be invalidated,
protecting the security of the treaty agreement. Hence, giving
unrestricted international legal authority to the executive to
withdraw from treaties does not best serve the principle of
treaty security; if anything, appropriate limits on the
executive’s international authority to withdraw uphold the
principle
Application
With the move to analogously apply Art 46 to Art 67, should this be accepted, a
treaty withdrawal that is carried out by the state’s executive, vested with
representative authority under Article 67 of the VCLT and which complies with the
applicable international legal requirements, may nonetheless be invalidated under
international law if done in manifest violation of a rule of domestic law.
In normal practice when joining treaties there is no duty on states to familiarize
themselves with the domestic law of others states, and so the ‘fundamental rule of
internal law’ has to be the subject of a specific warning to other states or
exceptionally well publicized in order to lead to a successful invocation of Article
46. In the context of treaty withdrawal, however, the circumstances may make it
more reasonable to expect a state to inquire into the domestic rules of its treaty
partners and thus increase the likelihood of a violation of domestic law being
objectively evident.
In treaty withdrawal, all treaty parties may have a significant interest in maintaining
the treaty’s membership and would arguably be the normal practice for all states
parties to enquire into the domestic legality of the act of treaty withdrawal, given
the serious effect it may have on their own interests.
The author suggests here is not that there is a general duty on states to know the
domestic requirements of treaty withdrawal for their treaty partners. Rather, where
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
would be reasonable to expect states to examine the domestic legality of the state
party’s withdrawal along- side the applicable international legal requirements.
Thus, the bottomline is that it is the position of the author that States can only
withdraw from a treaty if a manifest violation as provided in Article 46 applies.
8
First Colloquium
1st Submission: The Philippines’ withdrawal by note verbale from the Rome
Statute in the ICC is not valid, binding and effectual. It did not follow the
Constitution
- Article VII, Sec 21 of the 1987 Constitution: No treaty or international
agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.
- It did not follow the two step procedure that was taken by the government
to validly accede to the Rome statute
- Acte contraire principle:​ accession and withdrawal are parallel actions
requiring parallel procedure.
- The procedure was: accession, then deposit with the UN under
Article 125 of the Rome Statute
- Since the law does not give the President the power to withdraw, it does
not exist. There needs to be an express grant giving the president the
power to unilaterally withdraw.
- Democratic Alliance Case: “Absence of a provision in the
Constitution or any other legislation of a power for the executive to
terminate international agreements is therefore confirmation
- Miller Case
- History, presidential treaty-making powers, and jurisprudence show that
executive decision making powers are not unlimited.
- Democratic Alliance Case, Miller Case
- Pimentel v Executive Secretary
- The President ratifies, not the Senate
- “​Nonetheless, while the President has the sole authority to
negotiate and enter into treaties, the Constitution provides
a limitation to his power by requiring the concurrence of
2/3 of all the members of the Senate for the validity of the
treaty entered into by him. ​”
- Saguisag v. Ochoa
- “Clearly, the power to defend the State and to act as its
representative in the international sphere inheres in the
person of the President. This power, however, does not
crystallize into absolute discretion to craft whatever
instrument the Chief Executive so desires. As previously
mentioned, the Senate has a role in ensuring that treaties
or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the
Constitution, obtain the approval of two-thirds of its
members.”
- “This left a large margin of discretion that the President
could use to bypass the Legislature altogether. This was a
departure from the 1935 Constitution, which explicitly
gave the President the power to enter into treaties only
with the concurrence of two-thirds of all the Members of
the Senate. The 1987 Constitution returned the Senate's
power and, with it, the legislative's traditional role in
foreign affairs.”
- Bayan v. Zamora
- “In this sense, the Senate partakes a principal, yet
delicate, role in keeping the principles of ​separation of
powers and of ​checks and balances alive and vigilantly
ensures that these cherished rudiments remain true to
their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring
power of the Senate, a healthy system of checks and
balances indispensable toward our nation’s pursuit of
political maturity and growth.”
2nd Submission: Executive cannot unilaterally withdraw from a treaty
without violating constitutional bounds. Separation of Powers, Checks and
Balances
- The parallel two-step procedure countervailing the Executive’s unilateral
withdrawal from a treaty is consistent with the Constitutional doctrines of
the separation of powers and shared responsibility
- Supermajority requirement for Senate concurrence indicates key role
placed on the shoulders of the Upper House (the global trend too goes for
shared responsibility)
- Angara v. Electoral Commission: “But it does not follow from the
fact that the three powers are to be kept separate and distinct that
9
 the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination
in the workings of the various departments of the government. For
example, the Chief Executive under our Constitution is so far
made a check on the legislative power that this assent is required
in the enactment of laws.”
- Executive Deposit of the instrument of ratification is done only after the
decision of the Senate: after the signature of the treaty and at the stage of
ratification, the exercise of discretion properly pertains to the Senate as
the organ that concurs in the execution of the treaty
- 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
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.
- Discordant result: the unilateral withdrawal faces constitutional and legal
acts that the executive has no power to effect on its own. Under the
Constitution, the president is the chief enforcer of laws.
- Gonzales v Hechanova: “He may not defeat legislative
enactments that have acquired the status of law, by ​indirectly
repealing the same through an executive agreement ​providing for
the performance of the very act prohibited by said laws​.”
- Saguisag on: Treaties v. Executive Agreements:
- Executive agreements must proceed from an express or
implied authorization under Constitution, statutes or
treaties and do not create new international obligations,
otherwise it is void from the beginning
- Treaties are superior to executive agreements: lex
posterior derogat priori
- Both treaties and Executive Agreements are subject to the
supremacy of the Constitution
- How about the VFA, is it a treaty? If EA then the
president can unilaterally withdraw it. If treaty then it has
to go to a Senate. If it ​went through the senate, is it
determinative of the nature of the document?
3rd Submission: Even assuming the senate concurrence is not a
prerequisite for a valid withdrawal from a treaty, the executive does not have
cogent factual or legal basis for the ICC withdrawal other than the
President’s whimsical and arbitrary decision
- Complementarity requires mechanisms and procedures of preliminary
examination by the ICC-OTP to assure effective remedy for grave
violations of fundamental rights recognized in both constitutional law and
international law
- Hierarchy principle. ICC always steps in when there is inability or
unwillingness to prosecute crimes subject to the jurisdiction of ICC
TOPIC 2: Intl Human Rights Law ETOs TNCs
Case 1: Barcelona Traction
Summary:
Belgium brought its claim (which arose out of the adjudication bankruptcy in Spain
of Barcelona Traction, a Canadian company) before the Court on June 19, 1962.
Its object was to seek ​reparation for damage ​alleged by Belgium to have been
sustained by Belgian nationals, shareholders in the company, as a result of acts
said to be contrary to international law committed towards the company by organs
of the Spanish State. The Court found that ​Belgium lacked jus standi ​to exercise
diplomatic protection of Belgian shareholders in the Canadian company with
respect to measures taken against that company in Spain, and rejected Belgium's
claim. It is Canada, the state of nationality of the corporation, which has the cause
of action.
Facts
- The Barcelona Traction, Light and Power Company, Limited
- Incorporated in 1911 in Toronto (Canada), where it has its head
office.
- For the purpose of creating and developing an electric power
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
companies supplied the major part of Catalonia's electricity
requirements)
- It issued several series of ​bonds​, principally in sterling, which
were serviced out of transfers to Barcelona Traction effected by
the subsidiary companies operating in Spain.
- In 1948, Spanish holders of recently acquired Barcelona Traction sterling
bonds petitioned that court of Reus (Province of Tarragona) for a
declaration adjudging the company bankrupt​, on account of failure to pay
the interest on the bonds.
- A judgment was given declaring the company bankrupt and ordering the
seizure of the assets of Barcelona Traction and of two of its subsidiary
companies.
- Proceedings were brought without success in the Spanish courts by
various companies or persons.
- The case was submitted to the International Court of Justice.
Proceedings before the International Court and the Nature of the Claim
- The Belgian Government filed a first Application with the Court against the
Spanish Government in 1958.
- The Court gave a notice of discontinuance of the proceedings, with a view
to negotiations between the representatives of the private interests
concerned.
- The negotiations, however, failed; and the Belgian Government, submitted
to the Court a new Application.
- The Spanish Government raised four preliminary objections to the
Application.
- The ​claim submitted​ to the Court
- The ​claim was presented on behalf of natural and juristic persons,
alleged to be Belgian nationals and shareholders in Barcelona
Traction, a company incorporated in Canada and having its head
office there.
- The ​object of the Application was reparation for damage
allegedly caused to those persons by the conduct, said to be
contrary to international law, of various organs of the Spanish
State towards that company.
- The Court rejected the 1st and 2nd objections and joined the ​3rd and 4th
to the merits.
- The ​3rd preliminary objection of the Spanish Government was
to the effect that the Belgian Government lacked capacity to
submit any claim in respect of wrongs done to a Canadian
company, even if the shareholders were Belgian.
- The ​4th preliminary objection was to the effect that local
remedies available in Spain had not been exhausted.
- The case submitted to the Court principally concerned three States,
Belgium, Spain and Canada, and it was accordingly necessary to deal with
a series of problems arising out of this triangular relationship.
Issue​: ​Does Belgium have standing to represent Belgian stockholders in a
Canadian company in a claim against the Spanish government? No.
Ruling
Rights of the corporation vs. rights of the shareholders
- International law includes rules generally accepted by municipal systems.
In municipal law, there is a firm distinction between the rights of the
corporation​ and those of the ​shareholder​.
- Only the corporation can take action in respect of matters that
were of a corporate character.
- A wrong done to the corporation frequently causes prejudice to its
shareholders, but this does not imply that both are entitled to claim
compensation. Whenever a shareholder's interests are harmed by
an act done to the corporation, it is the latter which can institute
appropriate action.
- An act infringing only the corporation’s rights does not involve
responsibility toward the shareholders, even if their interests were
affected. For the shareholders to have standing, the act
complained of must be aimed at the direct rights of the
shareholders as such.
- Similarly, under international law, an injury to the shareholder's interests
resulting from an injury to the corporation’s rights is insufficient to found a
claim or to seek redress.
States’ right to exercise diplomatic protection
11
 - Thus, the ​general rule is that In cases of an alleged unlawful act against a
foreign corporation, it is the ​national state of the corporation which is
authorized to exercise diplomatic protection over such corporation for
purposes of seeking redress. No rule of international law confers such
right on the ​national state of the shareholders​.
- As an ​exception​, the following ​special circumstances may justify the
shareholders’ national state to exercise these rights:
- If the corporation has ​ceased to exist​, or
- If the corporation has ​no capacity to take action
- Another ​exception alluded to in this case is when a ​treaty allows the
shareholders’ national state to exercise diplomatic protection. This is
founded on the theory that investments by a state’s nationals abroad form
part of its national economic resources, and thus prejudice to these
investments would cause a “violation of the right of the state to have its
nationals enjoy a certain treatment.”
Application
- Here, the Belgian Government had itself admitted that its claim is not
based on an “infringement of the direct rights of the shareholders.” Thus,
the ​general rule ​should apply that an injury to the corporation, although
resulting in an injury to its stockholders, gives rise only to a claim in favor
of the former.
- The exceptions do not apply. While Barcelona Traction has lost all of its
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
lost its capacity to take action​. Neither is there a ​treaty between
Belgium and Spain affording special protection to the Belgian
stockholders.
- Because Belgium had no standing to initiate the claim to begin with, the
ICJ did not proceed to discuss the other merits of the case.
Case 2: Kiobel et al. v. Royal Dutch Petroleum Co., et al. (April 17, 2013)
Recit Ready:
Petitioners, a group of Nigerian nationals residing in US (previously residents of
Ogoniland, Nigeria) filed a suit under §1350 of the Alien Tort Statute (ATS) in the
federal court against Dutch, British and Nigerian corporations, arguing that the
latter aided and abetted the Nigerian Government in committing violations of the
law of nations in Nigeria. When the complaint was filed, Shell Petroleum
Development Company of Nigeria, Ltd. (SPDC/Respondent) was incorporated in
Nigeria and engaged in oil exploration and production in Ogoniland. Concerned
residents protested the environmental effects of SPDC’s practices, but the
respondents enlisted the Nigerian Government to violently suppress the protesters.
In sum, respondents’ violation includes – a) EJKs; b) crimes against humanity; c)
torture and cruel treatment; d) arbitrary arrest and detention; e) violations of the
right to life, security, and association; f) forced exile; and g) property destruction.
Petitioners filed suit in the US District Court for the Southern District of New York,
alleging jurisdiction under ATS, and requesting relief under customary international
law. The invoked §1350 of the ATS provides: “​the district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of
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,
saying that the law of nations does not recognize corporate liability.
Respondents argue that claims under ATS do not reach conduct occurring in the
territory of a foreign sovereign, presumption against extraterritorial application –
“when a statute gives no clear indication of an extraterritorial application, it has
none.” Petitioners, on the other hand, argue that even though the said presumption
applies, the text, history, and purposes of the ATS rebut it.
Whether the US courts may recognize a cause of action under the ATS for
violations of the law of nations occurring within the territory of a sovereign
other than the US? – ​NO​.
The petition is barred by virtue of the presumption against extraterritoriality
that applies to claims under the ATS, and nothing in the statute rebuts the
said presumption​. The presumption serves to protect against unintended clashes
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,
there must be present the affirmative intention of the Congress clearly expressed.
There is no indication that the ATS was passed to make the US a uniquely
hospitable forum for the enforcement of international norms.
12
The ATS is strictly jurisdictional. It is true that Congress, even in a jurisdictional
provision, can indicate that it intends federal law to apply to conduct occurring
abroad. However, to rebut the presumption, the ATS would need to evince a “clear
indication of extraterritoriality” – which it does not. Nothing in the text of ATS
evinces the requisite of clear indication of extraterritoriality. Under the Transitory
Torts Doctrine, “the only justification for allowing a party to recover when the cause
of action arose in another civilized jurisdiction is a well-founded belief that it was a
cause of action in that place.”
On these facts, all the relevant conduct took place outside the US. And even
where the claims touch and concern US territory, they must do so with sufficient
force to displace the presumption against extraterritorial application. ​Corporations
are often present in many countries, and it would reach too far to say that
mere corporate presence suffices. If Congress were to determine otherwise,
a statute more specific than the ATS would be required​.
Additional Ratio​:
1. The presumption against extraterritoriality helps ensure that the judiciary
does not erroneously adopt an interpretation of US law that carries foreign
political consequences not clearly intended by the political branches.
2. With regard to ATS’s history, when Congress passed it, the 3 principal
offenses against the law of nations had been identified as a) violation of
safe conducts; b) infringement of the rights of ambassadors; and c) piracy.
● The first 2 have no necessary extraterritorial application. Hence,
“violations against law of nations” were described in terms of
conduct occurring within the forum nation.
● For piracy, it typically occurs on the high seas, beyond US
territorial jurisdiction. US has regularly treated high seas as foreign
soil for purposes of the presumption against extraterritorial
application. However, applying US law to pirates does not typically
impose the sovereign will of the US onto another sovereign,
therefore, carries less direct foreign policy consequences.
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
territory of a foreign sovereign​.
4. The danger of unwarranted judicial interference in the conduct of foreign
policy is magnified in the context of the ATS, because the question is not
what Congress has done but what courts may do. There is a need for
judicial caution in considering which claims could be brought under the
ATS, in light of foreign policies. Hence, the principles underlying the
presumption against extraterritoriality constrain courts in exercising their
power under the ATS.
5. There is no indication that the ATS was passed to make the US a
uniquely hospitable forum for the enforcement of international
norms​.
6. Accepting petitioners’ view would imply that other nations, also applying
the law of nations, could hale US citizens into their courts for alleged
violations of the law of nations occurring in the US or elsewhere.
Disposition​:
Petitioners’ case seeking relief for violations of the law of nations occurring outside
the US is barred. The judgment of the Court of Appeals (the circuit court) is
affirmed.
Separate Opinions​:
JUSTICE KENNEDY, concurring.
● The opinion for the Court is careful to leave open a number of significant
questions regarding the reach and interpretation of the Alien Tort Statute.
In my view that is a proper disposition.
● Many serious concerns with respect to human rights abuses committed
abroad have been addressed by Congress in statutes such as the Torture
Victim Protection Act and that class of cases will be determined in the
future according to the detailed statutory scheme Congress has enacted.
● Other cases may arise with allegations of serious violations of international
law principles protecting persons, which are not covered by the TVPA nor
by the holding in today’s case. Thus in those disputes the proper
implementation of the presumption against extraterritorial application may
require some further elaboration and explanation.
JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring.
● Specifically, I agree that when Alien Tort Statute (ATS) “claims touch and
concern the territory of the United States, they must do so with sufficient
force to displace the presumption against extraterritorial application.”
13
 ● I write separately to set out the broader standard that leads me to the
conclusion that this case falls within the scope of the presumption.
● In Morrison v. National Australia Bank Ltd.:
○ a cause of action falls outside the scope of the presumption—and
thus is not barred by the presumption—only if the event or
relationship that was “the ‘focus’ of congressional concern” under
the relevant statute takes place within the United States.
○ For example, because “the focus of the [Securities] Exchange Act
[of 1934] is not upon the place where the deception originated, but
upon purchases and sales of securities in the United States,” we
held in Morrison that §10(b) of the Exchange Act applies “only” to
“transactions in securities listed on domestic exchanges, and
domestic transactions in other securities.”
● In Sosa v. Alvarez-Machain:
○ the case makes clear that when the ATS was enacted,
congressional concern was focused on the three principal
offenses against the law of nation” that had been identified by
Blackstone: violation of safe conducts, infringement of the rights of
ambassadors, and piracy.
○ Thus, only conduct that satisfies Sosa’s requirements of
definiteness and acceptance among civilized nations can be said
to have been “the ‘focus’ of congressional concern,” when
Congress enacted the ATS.
○ As a result, a putative ATS cause of action will fall within the
scope of the presumption against extraterritoriality—and will
therefore be barred—unless the domestic conduct is sufficient to
violate an international law norm that satisfies Sosa’s
requirements of definiteness and acceptance among civilized
nations.
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR
and JUSTICE KAGAN join, concurring in the judgment.
(Basically, Justice Breyer opines that ATS can actually have jurisdiction of acts
outside the US in certain cases, but the case does not fall under such jurisdiction.)
● I agree with the Court’s conclusion but not with its reasoning.
● The Court sets forth four key propositions of law: First, the presumption
against extraterritoriality applies to claims under the Alien Tort Statute.
Second, nothing in the statute rebuts that presumption. Third, there is no
clear indication of extraterritorial application here, where all the relevant
conduct took place outside the United States and where the claims do not
touch and concern the territory of the United States . . . with sufficient force
to displace the presumption. Fourth, that is in part because corporations
are often present in many countries, and it would reach too far to say that
mere corporate presence suffices.”
● Unlike the Court, I would not invoke the presumption against
extraterritoriality. Rather, guided in part by principles and practices
of foreign relations law, I would find jurisdiction under this statute
where (1) the alleged tort occurs on American soil, (2) the defendant is an
American national, or (3) the defendant’s conduct substantially and
adversely affects an important American national interest, and that
includes a distinct interest in preventing the United States from becoming
a safe harbor (free of civil as well as criminal liability) for a torturer or other
common enemy of mankind.
● Recognizing that Congress enacted the ATS to permit recovery of
damages from pirates and others who violated basic international law
norms as understood in 1789, Sosa essentially leads today’s judges to
ask: Who are today’s pirates?
● In my view the majority’s effort to answer the question by referring to the
“presumption against extraterritoriality” does not work well. That
presumption “rests on the perception that Congress ordinarily legislates
with respect to domestic, not foreign matters.” The ATS, however, was
enacted with “foreign matters” in mind. The statute’s text refers explicitly to
“alien[s],” “treat[ies],” and “the law of nations.” The statute’s purpose was
to address “violations of the law of nations, admitting of a judicial remedy
and at the same time threatening serious consequences in international
affairs.”.
● The majority cannot wish this piracy example away by emphasizing that
piracy takes place on the high seas. That is because the robbery and
murder that make up piracy do not normally take place in the water; they
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.
14
● The majority nonetheless tries to find a distinction between piracy at sea
and similar cases on land. It writes, “Applying U. S. law to pirates . . . does
not typically impose the sovereign will of the United States onto conduct
occurring within the territorial jurisdiction of another sovereign and
therefore carries less direct foreign policy consequences.” But, as I have
just pointed out, “[a]pplying U. S. law to pirates” does typically involve
applying our law to acts taking place within the jurisdiction of another
sovereign.
● The majority also writes, “Pirates were fair game wherever found, by any
nation, because they generally did not operate within any jurisdiction.” I
very much agree that pirates were fair game “wherever found.” Indeed,
that is the point. That is why we asked, in Sosa, who are today’s pirates?
○ Certainly today’s pirates include torturers and perpetrators of
genocide. And today, like the pirates of old, they are “fair game”
where they are found. Like those pirates, they are “common
enemies of all mankind and all nations have an equal interest in
their apprehension and punishment.”
● In any event, as the Court uses its “presumption against extraterritorial
application,” it offers only limited help in deciding the question presented,
namely “‘under what circumstances the Alien Tort Statute . . . allows courts
to recognize a cause of action for violations of the law of nations occurring
within the territory of a sovereign other than the United States.’” The
majority echoes in this jurisdictional context Sosa’s warning to use
“caution” in shaping federal common law causes of action. But it also
makes clear that a statutory claim might sometimes “touch and concern
the territory of the United States . . . with sufficient force to displace the
presumption.” It leaves for another day the determination of just when the
presumption against extraterritoriality might be “overcome.”
● In applying the ATS to acts “occurring within the territory of another
sovereign,” I would assume that Congress intended the statute’s
jurisdictional reach to match the statute’s underlying substantive grasp.
That grasp, defined by the statute’s purposes set forth in Sosa, includes
compensation for those injured by piracy and its modern- day equivalents,
at least where allowing such compensation avoids “serious” negative
international “consequences” for the United States. And just as we have
looked to established international substantive norms to help determine
the statute’s substantive reach, so we should look to international
jurisdictional norms to help determine the statute’s jurisdictional scope.
○ The Restatement (Third) of Foreign Relations Law is helpful.
Section 402 recognizes that, subject to §403’s “reasonableness”
requirement, a nation may apply its law not only (1) to “conduct”
that “takes place or to persons or things]within its territory but also
(2) to the “activities, interests, status, or relations of its nationals
outside as well as within its territory,” (3) to “conduct outside its
territory that has or is intended to have substantial effect within its
territory,” and (4) to certain foreign “conduct outside its territory . . .
that is directed against the security of the state or against a limited
class of other state interests.” In addition, §404 of the Restatement
explains that a “state has jurisdiction to define and prescribe
punishment for certain offenses recognized by the community of
nations as of universal concern, such as piracy, slave trade,” and
analogous behavior.
● Considering these jurisdictional norms in light of both the ATS’s basic
purpose (to provide compensation for those injured by today’s pirates) and
Sosa’s basic caution (to avoid international friction), I believe that the
statute provides jurisdiction where (1) the alleged tort occurs on American
soil, (2) the defendant is an American national, or (3) the defendant’s
conduct substantially and adversely affects an important American
national interest, and that includes a distinct interest in preventing the
United States from becoming a safe harbor (free of civil as well as criminal
liability) for a torturer or other common enemy of mankind.
● As I have indicated, we should treat this Nation’s interest in not becoming
a safe harbor for violators of the most fundamental international norms as
an important jurisdiction related interest justifying application of the ATS in
light of the statute’s basic purposes—in particular that of compensating
those who have suffered harm at the hands of, e.g., torturers or other
modern pirates.
● International norms have long included a duty not to permit a nation to
become a safe harbor for pirates (or their equivalent).
● More recently two lower American courts have, in effect, rested jurisdiction
primarily upon that kind of concern. In Filartiga, 630 F. 2d 876, an alien
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
and the actions underlying the lawsuit took place abroad. The defendant,
however, “had . . . resided in the United States for more than ninth
months” before being sued, having overstayed his visitor’s visa.
Jurisdiction was deemed proper because the defendant’s alleged conduct
violated a well-established international law norm, and the suit vindicated
our Nation’s interest in not providing a safe harbor, free of damages
claims, for those defendants who commit such conduct. In Marcos, the
plaintiffs were nationals of the Philip- pines, the defendant was a Philippine
national, and the alleged wrongful act, death by torture, took place abroad.
A month before being sued, the defendant, “his family, . . . and others loyal
to [him] fled to Hawaii,” where the ATS case was heard. As in Filartiga, the
court found ATS jurisdiction.
● Application of the statute in the way I have suggested is consistent with
international law and foreign practice. Nations have long been obliged not
to provide safe harbors for their own nationals who commit such serious
crimes abroad.
● Many countries permit foreign plaintiffs to bring suits against their own
nationals based on unlawful conduct that took place abroad. Other
countries permit some form of lawsuit brought by a foreign national against
a foreign national, based upon conduct taking place abroad and seeking
damages. Certain countries, which find “universal” criminal “jurisdiction” to
try perpetrators of particularly heinous crimes such as piracy and
genocide, also permit private persons injured by that conduct to pursue
“actions civiles,” seeking civil damages in the criminal proceeding.
● 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
courts also invoking other related doctrines such as comity, exhaustion,
and forum non conveniens, along with its dependence (for its workability)
upon courts obtaining, and paying particular attention to, the views of the
Executive Branch, all should obviate the majority’s concern that our
jurisdictional example would lead “other nations, also applying the law of
nations,” to “hale our citizens into their courts for alleged violations of the
law of nations occurring in the United States, or anywhere else in the
world.”
● Most importantly, this jurisdictional view is consistent with the substantive
view of the statute that we took in Sosa. This approach would avoid
placing the statute’s jurisdictional scope at odds with its substantive
objectives, holding out “the word of promise” of compensation for victims
of the torturer, while “break[ing] it to the hope.”
● Applying these jurisdictional principles to this case, however, I agree
with the Court that jurisdiction does not lie. The defendants are two
foreign corporations. Their shares, like those of many foreign corporations,
are traded on the New York Stock Exchange. Their only presence in the
United States consists of an office in New York City (actually owned by a
separate but affiliated company) that helps to explain their business to
potential investors. The plaintiffs are not United States nationals but
nationals of other nations. The conduct at issue took place abroad. And
the plaintiffs allege, not that the defendants directly engaged in acts of
torture, genocide, or the equivalent, but that they helped others (who are
not American nationals) to do so.
○ Under these circumstances, even if the New York office were a
sufficient basis for asserting general jurisdiction, it would be
farfetched to believe, based solely upon the defendants’ minimal
and indirect American presence, that this legal action helps to
vindicate a distinct American interest, such as in not providing a
safe harbor for an “enemy of all mankind.” Thus I agree with the
Court that here it would “reach too far to say” that such “mere
corporate presence suffices.”
● I consequently join the Court’s judgment but not its opinion.
Case 3: Vedanta Resources PLC v. Lungowe - April 10, 2019
This case provides a note of caution for ​multinational parent companies who
intervene closely in their subsidiaries’ activities. ​Here, the multinational parent
company is Vedanta (UK), while the subsidiary is KCM (Zambia).
Facts
Residents of the Zambian city of Chingola brought proceedings in the English
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
the claimants.
Vedanta’s Duty of Care to Claimants
● Although it was common ground between the parties that the
defendants’ liability would be assessed under Zambian law, the
extent of Vedanta’s involvement in the operation of KCM’s mine
was a factual issue relevant to both the negligence and statutory
liability claims.
● In this regard, the lower courts held (on a summary assessment)
that ​Vedanta did owe a duty of care to the claimants ​(Some
acts: published a sustainability report which emphasised how the
Board of the parent company had oversight over its subsidiaries,
entered into a management and shareholders agreement under
which it was obligated to provide various services to KCM,
provided health, safety and environmental training across its group
companies, financial support).
Parent Company Liability
● Court, through Lord Briggs held that ​“there is no limit to the
models of management and control which may be put in
place within a multinational group of companies”​. Similarly
he rejected the submission that there was any general
limiting principle that a parent company could never incur a
duty of care merely by issuing group-wide policies and
guidelines and expecting the subsidiary to comply. ​These
comments will no doubt be of concern to multinationals wishing to
understand in exactly what circumstances a parent company
might attract liability for its subsidiaries’ activities.
● Lord Briggs noted that there is a wide range of models of
management and control in the relationship between parents and
their subsidiaries, from a parent merely being a passive investor in
its subsidiary’s activities to a vertically integrated group which
effectively operates as one company.
● In short, the risk of a duty of care being incurred is greater
the more closely involved a parent is with its subsidiary. ​The
risk is particularly acute where, as in this case, we are talking
about a parent that imposes group-wide policies on its
subsidiaries.
● There is a number of ways in which doing so could expose
the parent to liability, including:
1. where group-wide policies or guidelines contain systemic
errors that cause harm to third parties when applied by the
subsidiary;
2. where the parent actively ensures the implementation of
group-wide policies by providing training and supervising
and enforcing their implementation; or
3. if the parent holds itself out publicly as supervising or
having control of its subsidiaries when it does not in fact
do so.
● Here, as earlier mentioned, Vedanta was closely involved as a
parent company.
● Even where group-wide policies do not of themselves give
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,
by training, supervision and enforcement, to see that they are
implemented by relevant subsidiaries.
● Similarly, ​the parent may incur the relevant responsibility to
third parties if, ​in published materials​, it ​holds itself out as
exercising that degree of supervision and control of its
subsidiaries​, even if it does not in fact do so.
● Here, it was arguable Vedanta did owe a duty of care to the
claimants given that it had:
○ Published a sustainability report which emphasised how
the Board of the parent company had oversight over its
subsidiaries.
○ Entered into a management and shareholders agreement
under which it was obligated to provide various services to
KCM, including employee training.
○ Provided health, safety and environmental training across
its group companies.
○ Provided financial support to KCM.
18
 ○ Released various public statements emphasising its
commitment to address environmental risks and technical
shortcomings in KCM’s mining infrastructure.
○ Exercised control over KCM, as evidenced by a former
employee​.
3. Claimants may either sue both companies in Zambia, or to sue
Vedanta in England and KCM in Zambia.
● CPR 6.37(3) provides that: “The court will not give permission [to
serve the claim form out of the jurisdiction] unless satisfied that
England and Wales ​is the proper place in which to bring the
claim.​ ” It has previously been labelled ​forum conveniens and
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
parties and for the ends of justice. That concept generally requires
a summary examination of ​connecting factors between the
case and one or more jurisdictions in which it could be
litigated​. Those include ​matters of practical convenience ​such
as accessibility to courts for parties and witnesses and the
availability of a common language so as to minimise the expense
and potential for distortion involved in translation of evidence.
Although they are important, they are not necessarily
conclusive​. Connecting factors also include matters such as the
system of law which will be applied to decide the issues, the
place where the wrongful act or omission occurred and the
place where the harm occurred​.
● One of the problems raised is that the case involves ​multiple
defendants domiciled in different jurisdictions​.
● The concept behind the phrases “the forum” and “the proper
place” is that the court is looking for a single jurisdiction in which
the claims against all the defendants may most suitably be tried.
An unspoken assumption behind that formulation of the concept of
forum conveniens or proper place is that there would ​risk
multiplicity of proceedings about the same issues, and
inconsistent judgments​. But ​it is only one factor in the
evaluative task of identifying the proper place.
● In this case, the anchor defendant, Vedanta, had by the time of
the hearing offered to submit to the jurisdiction of the Zambian
courts, so that the whole case could be tried there. This did not, of
course, prevent the claimants from continuing against Vedanta in
England.
● Article 8 of the Brussels Recast Regulation gives claimants in
intra-EU disputes the choice (but not the obligation) to consolidate
proceedings in order to avoid the risk of irreconcilable judgments.
Thus, the same principle should apply where the claimants are
domiciled outside the EU (as in this case).
● Zambia was overwhelmingly the proper place for the claim to
be tried.​ Summary of the connecting factors:
i) The allegedly wrongful acts or omissions occurred
primarily in Zambia.
ii) The causative link between the allegedly negligent
operation of the Mine and the damage which ensued is of
course the escape of noxious substances into waterways,
which also occurred within Zambia.
iii) The Mine was operated pursuant to a Zambian mining
licence and subject to Zambian legislation. In any event, it
is common ground that all the applicable law is Zambian.
iv) The claimants are all poor persons who would have
real difficulty travelling to England to give evidence.
Although English is an official language in Zambia, many
of the claimants only speak a local dialect which would
require translation.
v) KCM’s witnesses of fact are all based in Zambia.
vi) Many of KCM’s documents would, like the evidence of
their witnesses, require translation.
vii) All the regulatory and testing records and reports
relevant to the alleged emissions from the Mine are likely
to be based in Zambia, as is the responsible regulator.
viii) Vedanta’s relatively small number of employees are
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
recognisable and enforceable in England, against
Vedanta. Zambian judgments are enforceable in England
under their law.
● In conclusion, the claimants had failed to demonstrate that
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.
4. Even if Zambia would otherwise be the proper place, there was a real
risk that the claimants would not obtain access to substantial justice
in Zambia.
● Even if the court concludes that a foreign jurisdiction is the
proper place in which the case should be tried, the court may
nonetheless permit (or refuse to set aside) service of English
proceedings on the foreign defendant if satisfied, by cogent
evidence, that there is a real risk that substantial justice will
not be obtainable in that foreign jurisdiction.
● Two factors: ​first, the practicable impossibility of funding such
group claims where the claimants were all in extreme
poverty; and secondly, the absence within Zambia of
sufficiently substantial and suitably experienced legal teams
to enable litigation of this size and complexity to be
prosecuted effectively, in particular against a defendant
(KCM) with a track record which suggested that it would
prove an obdurate opponent.
● 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
the litigation themselves, that they would not obtain legal aid for
this claim and nor could it be funded by a Conditional Fee
Agreement (“CFA”) because CFAs are unlawful in Zambia. The
Zambian legal profession lacked the resources and experience
with which to conduct such litigation successfully.
Conclusion: A ​ lthough the appellants were correct as to the issue of proper place,
they failed the substantial justice issue, so their appeal is dismissed.
UN Guiding Principles
United Nations Guiding Principles on Business and Human Rights
The United Nations Guiding Principles on Business and Human Rights (UNGPs) is
an instrument which consists of 31 principles ​implementing the UN ‘Protect,
Respect, and Remedy’ framework on the issue of ​human rights and transnational
corporations and other business enterprises​. The UNGPs were developed by John
Ruggie, the Special Representative of the Secretary-General. The Human Rights
Council endorsed the UNGPs in its resolution in the year 2011. The UNGPs apply
to all states and business enterprises.
Important Note: The problem with the UNGPs is that it does not bind any states.
It’s not like a treaty. It’s just a framework, a “guide” on how states and business
enterprises should ac to protect human rights. There are States which have
acknowledged this instrument and implemented it through a National Action Plan
(NAP). However, in the Philippines, there is still no existing law or NAP which
acknowledge or enforce the UNGPs.
● The document itself is quite long pero same lang sinasabi. It revolves
around the three pillars
Three pillars of UNGPs: (PRR)
1. States duty to Protect human rights
2. Obligation of the business enterprises to Respect
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
Obligations of States in the Area of Economic, Social
and Cultural Rights
a) Principle 8: Two Types of Extraterritorial
Obligations of States
(1) obligations relating to the acts and
omissions of a State, within or beyond its
territory, that have effects on the
enjoyment of human rights outside of that
State’s territory; and
(2) obligations of a global character that are
set out in the Charter of the United
Nations and human rights instruments to
take action, separately, and jointly
through ​international cooperation​, to
realize human rights universally
b) Scope of jurisdiction: A State has obligations to
respect, protect and fulfil economic, social and
cultural rights in any of the following:
(1) situations over which it exercises authority
or effective control, whether or not such
control is exercised in accordance with
international law;
(2) situations over which State acts or
omissions bring about foreseeable effects
on the enjoyment of economic, social and
cultural rights, whether within or outside
its territory;
4. situations in which the State, acting separately or jointly,
whether through its executive, legislative or judicial
branches, is in a position to exercise decisive influence or
to take measures to realize economic, social and cultural
rights extraterritorially, in accordance with international
law
C. Legally Binding Instrument on Transnational Corporations
(LBI/ UN Treaty)
V. Direct Legal Obligations of TNCs
A. Due to to the nature and influence of TNCs, they should bear HR
responsibilities
1. Current state of things: STATES as duty bearers
2. TNCs: Human Rights are none of our business
3. UNGPs 2nd Pillar: carefully worded as “Responsibility”
rather than “Duty” or Obligation
VI. Issues and Proposals
A. Uncertainty over nationality and domicile
1. Each municipal law has criteria for determining nationality
B. Legal personalities in TNCs and Imputability
C. Untenable proposition that International Human Rights Law
imposes on TNCs
VII. Recap
A. TNCs are powerful domestically and internationally
B. Theres a huge gap in terms of exacting accountability in IL
TOPIC 3: Status of the right to health under International Law; China’s
responsibility, if any, for the COVID-19 pandemic; and the relevance of
human rights during a pandemic.
Right to Health and State Responsibility - Francis Tom Temprosa
Introduction ​(copied/modified from Justin and Kiko & Mars’ Reviewers)​:
Current situation: COVID-19 Pandemic.
- China is the country where the pandemic first surfaced
Domestic suits
As of April 16, there have been 4 class action suits against China filed before US
Domestic Courts
- Plaintiffs
(1) Filed by property managers in California
(2) Filed by residents of Florida
(3) Filed by the state of Missouri - Seeking damages
(4) Filed by a lawyer, Larry Clayman
- All 4 suits were filed under US law and invoke US law
By May 6, 2 class action suits were filed before the Federal Court in Miami and
there are similar ones in California, Pennsylvania, Nevada, and Texas. Mississippi
is said to file a case and Florida may be the next state to file a case.
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
act/omission must satisfy the 2 elements to be considered an
Internationally Wrongful Act of a state.
- Thus, the question now is: what are the rules that could have been
breached by China under international law? What’s the legal basis?
Right to Health
Principles
- Right to Health = Human Right; it belongs to the people
- ICESCR: Everyone has a right to the highest attainable standard of health
- UNESCR: the Right to Health has...
- 2 Components:
- Physical Health
- Mental Health
- 4 Determinants: The right to health should be
- Available
- Accessible
- Adaptable
- Of Quality
Now, can China be sued for a violation of a right to health of a citizen of another
country?
- Things to consider..
- Whether China is a state party of the ICESCR
- Whether China can be liable as a state party of the ICESCR
- At present, China is a state party of the ICESCR. It has
the obligation to implement the convention in its territory
regardless of the citizenship of the person (i.e. China is
responsible for the health of that person)
- Does the application of ICESCR have extraterritorial application
value? (i.e. can the obligations of China under ICESCR have
territorial effect?)
- At present, it is recognized that a state has responsibilities not
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
- Temprosa opinion: China does not have control over the
territory of the US (in relation to the class suits filed in the
US against China, seeking for damages)
There could be another source of possible obligation on the party of China when it
comes to the coronavirus spreading all over the world (an evolving matter) --
International Health Regulations (IHR) of the World Health Organization
- China is a state party in the IHR (joined 2005)
- Art. 6, IHR: Each state party shall assess events occurring within its
territory by using the process provided in Annex 2 of the IHR. TL; DR: the
annex provides that
- each state party shall notify the WHO through the most effective
means of communication available
- Notify within 24 hours from the occurring of the event which may
constitute an event of international concern
- Art. 6, Par. 2, IHR: following notification, the State shall continue to
communicate with WHO timely, accurate, and sufficient detailed public
health information available to it on the notified event
- Providing WHO with case definitions, laboratory results, sources
of risk, number of cases/deaths
- The question now is: ​Was there a timely notification on the part of
China regarding COVID-19?
- Art. 7, IHR: if the state party has evidence of
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
health events)
- Given this, Art. 6 should apply in full. There is a timely requirement
of notification on the part of the state party.
- Chorzo factory case, and other related cases on reparation:
- A reparation must, as far as possible,
- be able to wipe out all the consequences of the illegal act
and
- reestablish the situation which would in all probability have
existed, had it not been for the act
- Rainbow warrior case:
- The Tribunal has to consider an order of payment from monetary
compensation that could be made in case of breach of an
international obligation involving serious moral and legal damage,
even though there is no material damage
- It is yet to be determined whether China is still at fault, if there was delay in
the notification, and if this delay consisted a violation of the IHR or the
WHO Constitution
- It is only when there is damage that a state can be held liable
Defenses that China can use​ ​(copied/modified from Kiko & Mars’ Reviewer):​
- China did not actually violate any legal obligation, whether in ICESCR or
IHR
- (Attributability) Assuming further that there was some sort of problem and
this problem occurred in the territory of China, Chinese authorities and
state organs were not involved at all in the alleged violation of international
obligations
- Actions were by private actors and China did not commit anything
wrong
- The burden of proof actually lies not only China but on other states to
prove that China actually committed something wrong and the States
should prove that any damage incurred was in fact caused by China by a
failure to act or an action was in violation of international obligation
- Trail Smelter case (p.1931) - damages with respect to business
enterprises
- the nature of the damage has to be proven for there to be
reparations
- On the indemnity for economic damages, the burden of
proof lies on the party that alleges damages
- Damage caused was not something that China could have reasonably
prevented
- Damage to other countries could not have been reasonably
prevented
- The question here is a ​question of nexus
- In the Bosnian Genocide case (2007), the question of whether
there is a sufficiently direct and certain causal ​nexus between the
wrongful act​ and the​ breach​ has to be proven
- Such nexus can only be considered only if the Court
would be able to conclude from the case as a whole and
with reasonable certainty that the act would have in fact
been averted if the State acted in compliance with its legal
obligations
- China could probably argue that it could not have
prevented this, no matter what it does – this is something
that resulted from a biological cause or a epidemiological
concern that is not within the hands of the State
The issue: even if a State such a China could be held liable, we have to find a
state that could sue China
- That is a political move in the part of the suing State
Human Rights Law can also be an avenue not before the ICJ, but before the
Comm. on Economic and Social Rights (ICESCR)
- There can be a communication filed essentially arguing that China is in
violation of ICESCR (breach of Art. 12 of ICESCR and the Right to Health
provision)
- The value in that is that the ICESCR committee can:
- weigh in and propound views on the matter.
- could rule on the extraterritorial nature of the obligations of
China.
- But, unfortunately, it cannot really enforce payment
because the views of the Committee are not really
enforceable in that sense.
26

WHO Constitution salient points
Chapter I (Objective)
Article 1 - The objective of the World Health Organization (hereinafter called the
Organization) shall be the attainment by all peoples of the highest possible level of
health.
Chapter II (Functions)
Article 2 - The functions of the Organization shall be:
- (a) to act as the directing and coordinating authority on international health
work;
- (b) to establish and maintain effective collaboration with the United Nations
xxx;
- (c) to assist Governments, upon request, in strengthening health services;
- (d) to furnish appropriate technical assistance and, in emergencies,
necessary aid upon the request or acceptance of Governments;
- (g) to stimulate and advance work to eradicate epidemic, endemic and
other diseases;
- (n) to promote and conduct research in the field of health;
- (q) to provide information, counsel and assistance in the field of health;
- (r) to assist in developing an informed public opinion among all peoples on
matters of health;
- (v) generally to take all necessary action to attain the objective of the
Organization.
Chapter V (The World Health Assembly) - composed of delegates representing the
state members of the WHO
Article 18 - Functions of the Health Assembly
- (a) to determine the policies of the Organization;
- (g) to instruct the Board and the Director-General to bring to the attention
of Members and of international organizations, governmental or non-
governmental, any matter with regard to health which the Health Assembly
may consider appropriate;
- (h) to invite any organization, international or national, governmental or
non-governmental, which has responsibilities related to those of the
Organization, to appoint representatives to participate, without right of
vote, in its meetings or in those of the committees and conferences
convened under its authority, on conditions prescribed by the Health
Assembly; but in the case of national organizations, invitations shall be
issued only with the consent of the Government concerned;
- (i) to consider recommendations bearing on health made by the General
Assembly, the Economic and Social Council, the Security Council or
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;
- (j) to report to the Economic and Social Council in accordance with any
agreement between the Organization and the United Nations;
Article 21 - The Health Assembly shall have authority to adopt regulations
concerning:
- (a) sanitary and quarantine requirements and other procedures designed
to prevent the international spread of disease;
- (c) standards with respect to diagnostic procedures for international use;
- (d) standards with respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international com- merce;
Article 22 - Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly
except for such Members as may notify the Director-General of rejection or
reservations within the period stated in the notice.
Chapter VI (The Executive Board)
- composed of delegates representing the state members of the WHO
Article 28 - Functions of the Executive Board
- (a) to give effect to the decisions and policies of the Health Assembly;
- (b) to act as the executive organ of the Health Assembly;
- (e) to submit advice or proposals to the Health Assembly on its own initia-
tive;
- (i) to take emergency measures within the functions and financial
resources of the Organization to deal with events requiring immediate
action. In particular it may authorize the Director-General to take the
necessary steps to combat epidemics, to participate in the organization 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
Member or by the Director-General.
Chapter XIV (Reports Submitted by States)
Article 61 - Each Member shall report annually to the Organization on the action
taken and progress achieved in improving the health of its people.
Article 63 - Each Member shall communicate promptly to the Organization impor-
tant laws, regulations, official reports and statistics pertaining to health which have
been published in the State concerned.
Chapter XVIII (Interpretation)
Article 75 - ​Any question or dispute concerning the interpretation or application
of this Constitution which is ​not settled by negotiation or by the Health
Assembly shall be ​referred to the International Court of Justice in conformity
with the Statute of the Court, unless the parties concerned agree on another mode
of settlement.
- 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
resolution is based on a state’s consent).
Article 76 - Upon authorization by the General Assembly of the United Nations or
upon authorization in accordance with any agreement between the Organi-zation
and the United Nations, the Organization may request the International Court of
Justice for an advisory opinion on any legal question arising within the competence
of the Organization.
Trail Smelter case summary
DOCTRINE: The arbitration panel announced two revolutionary legal
concepts relating to transboundary damages in its judgments. First, that no
nation has the right to use or require its territory to cause harm to another’s
territory or to the property or person(s) therein. Second, that a polluting state
has to compensate for the harm caused by polluting activities on their own
territory. Canada was eventually forced to pay US reparations.
PART I: A smelter for zinc and lead ores was operated in a place called Trail in
Canada by the Consolidated Mining and Smelting Company of Canada. The
smelter produced emissions of sulphur dioxide fumes. The US Government
complained that the fumes were causing damage in the state of Washington.
ISSUES: WON Canada is liable for damages to the US. - YES
WON the Trail Smelter should be required to refrain from causing damage in
Washington in the future. - YES
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
US claims a total of $2.1M in damages.
● In determination for damages, tribunal considers the following:
(a) Existence of Injury
(b) Cause of Injury
(c) Damage due to the Injury
● Where the tort itself is of such a nature as to preclude ascertainment of
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
wrongdoer from making any amend for his acts
○ In such a case, while damages may not be determine by mere
speculation, it will be enough if the evidence show the extent of
the damages as a matter of just and reasonable inference,
although the result be only approximate.
● Different Claims for damages by US
○ Damages in respect of cleared land, uncleared land and
improvements thereon
■ Court awarded damages of $78,000 since there was
ample evidence to show that the sulfur dioxide emanating
from the trail smelter caused the damage upon such lands
○ Damages for Livestock
■ 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
○ Damages in respect of business enterprises
■ Tribunal is of the opinion that the damage is “too indirect,
remote and uncertain” to be appraised and not such for
which an indemnity can be awarded
■ Burden of proof of such damages lies with the US
○ Damages in respect of the wrong done in the US in violation of
sovereignty
■ As argued by US: Computation of damages: measured by
the cost incurred by the US in investigating the problems
created by the smelter.
■ Tribunal: The tribunal held that the US should not be
awarded this particular claim since it was not within the
intention of the parties to include money expended for the
investigation of the case as part of the term “damages
caused by the Trail smelter.” In other previously decided
cases, damages awarded for expenses were awarded not
as compensation for violation of national sovereignty but
as compensation for expenses incurred by individual
claimants in prosecuting their claims for the wrongful acts
of the offending Government.
■ Such expenses should not be allowed where each
government has incurred expenses and where it is to the
mutual advantage of the 2 governments that a just
conclusion and a permanent disposition if an international
controversy should be reached.
● The Train Smelter shall refrain from causing damage in Washington in the
future to the extent set forth. The Tribunal then provided for a temporary
regime for the regulation of sulphur emissions.
PART II: Two years later, the Tribunal met again and reiterated its decision but
added the following:
● US appeals to the decision of the tribunal as to the damages incurred for
investigation which was denied on the first decision
○ Tribunal: Under the Convention (Article XIII) each Government
shall pay the expenses of the presentation and conduct of its case
before the Tribunal. Whatever may have been the nature of the
expenditures previously incurred, the Tribunal finds that monies
expended by the United States in the investigation, preparation
and proof of its case after the Convention providing for arbitral
adjudication, including the aforesaid provision of Article XIII, had
been concluded and had entered into force, were in the nature of
expenses of the presentation of the case.
○ An indemnity cannot be granted without reasonable proof of the
existence of an injury, of its cause and of the damage due to it.
The presentation of a claim for damages includes, by necessary
implication, the collection in the field of the data and the
preparation required for their presentation as evidence in support
of the statement of facts provided for in Article V of the
Convention.
○ There is a fundamental difference between expenditure incurred in
mending the damageable consequences of an injury and monies
spent in ascertaining the existence, the cause and the extent of
the latter. These are not part of the damage, any more than other
costs involved in seeking and obtaining a judicial or arbitral
remedy
○ When a State espouses a private claim on behalf of one of its
nationals, expenses which the latter may have incurred in
prosecuting or endeavoring to establish his claim prior to the
espousal are sometimes included and, under appropriate
conditions, may legitimately be included in the claim.
○ They are costs, incidental to damage, incurred by the national in
seeking local remedy or redress, as it is, as a rule, his duty to do,
if, on account of injury suffered abroad, he wants to avail himself
of the diplomatic protection of his State.
● A State owes at all times a duty to protect other States against injurious
acts by individuals from within its jurisdiction.
○ Under the principles of international law, as well as of the law of
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
the case is of serious consequence and the injury is established
by clear and convincing evidence.
○ The Tribunal holds that Canada is responsible in international law
for the conduct of the Trail Smelter. It is, therefore, the duty of the
government of Canada to see to it that this conduct should be in
conformity with the obligation of Canada under international law as
herein determined. The Trail Smelter shall be required to refrain
from causing any damage through fumes in the State of
Washington.
● The tribunal then set forth a permanent regime for monitoring and
regulating the pollution from the Trail Smelter.
China as an accomplice news
By: Hinnerk Feldwisch-Drentrup
After initial denials and cover-ups, China successfully contained the
COVID-19 outbreak — but not before it had exported many cases to the
rest of the world.
● BEIJING and WHO:
○ WHO was steered away by Beijing from getting information
re: COVID-19
■ Pre-visit to China
● International experts of WHO did not get
access to the country until Director-General
Tedros Adhanom visited President Xi Jinping
at the end of January.
● WHO, without access, was uncritically
repeating information from Chinese
authorities, ignoring warnings from
Taiwanese doctors (unrepresented in WHO),
and reluctant to declare a “public health
emergency of international concern.”
■ Post-visit
● WHO said that it appreciated China,
“especially the commitment from top
leadership,and the transparency they have
demonstrated.”
● Only declared a public health emergency of
international concern after the meeting.
● WHO declared the coronavirus a pandemic
on March 11, even though it had spread
globally weeks before.
○ WHO praised China for COVID measures but neglected the
negative externalities
■ Neglected: Economic damage, failure to treat many
non-coronavirus patients, psychological woes, and
human rights costs
○ WHO accepts and takes numbers reported by Beijing at
face value
■ China’s official data is often highly dubious
■ Countless people are dying at home in Wuhan, and it
was alleged that it never went into the statistics
■ A considerable percentage of asymptomatic cases
has not been reported, which amounts to about 50%
more known infections in China
○ WHO’s justification: “Every country has its own self-reporting
processes”
■ a WHO spokesperson stated that China reported
and isolated ALL individuals with
laboratory-confirmed COVID-19. However, Chinese
authorities only made public the current numbers of
asymptomatic cases with lab-confirmed infections in
the beginning of April—which also are included in the
WHO case definition for COVID-19
30
 ■ WHO reported the number of people put in
quarantine, isolation, or residential restriction from
China’s National Health Commission—which are
much smaller than the numbers calculated in third
party statistics, and insisted that China was not
hiding anything
○ WHO experts who travelled to China did not include in the
screening programs those who did not have a fever
■ Compared to Germany’s screening program:
included those who did not show a fever, and
eventually tested positive.
○ WHO also left many questions open about how public
engagement was managed and prevention and control in
general
■ WHO reported that the community has largely
accepted the prevention and control measures and is
fully participating in the management of self-isolation
and enhancement of public compliance
■ that Chinese people have reacted “with courage and
conviction”, and have “accepted and adhered to the
starkest of containment measures.”
■ While this is probably true for many, others were
likely motivated by a statement of the Supreme
People’s Court: People carrying the virus who don’t
follow quarantine restrictions “face jail terms ranging
from three to 10 years if the consequence is not
serious,” Otherwise, they could face a life sentence
or death.
■ The WHO mission didn’t have the chance to speak
with people with opposing views.
■ The very uniformity of this narrative should have
been a wake-up call. During the whole trip of both
foreign and national experts, it seems to have been
organized along Potemkin-esque lines for a team
where most of its international members lacked
linguistic skills and familiarity with China.
○ WHO allowed China to exert influence in the global health
space
■ WHO had evolved out of colonial-era international
sanitary conferences convened by the European
powers and expansionist U.S. policy.
■ Since WHO was controlled and largely influenced by
the national interests of Western powers before,
countries like China have started to have more
influence in the global health space.
■ Beijing’s say is growing not only at WHO, but also in
the health policies of more and more countries.
● Effects of the falsehoods it passed on:
○ Delayed global response
○ Ill-advised health policies in other countries
○ The Chinese government is able to make its propaganda
campaign to ignore its earlier mistakes, appear credible, and
to ignore the human, societal, and economic costs of its
responses
● Quarantine v. Testing
○ According to Richard Neher, a virologist at the University of
Basel, it’s no surprise that China’s containment strategy was
effective as the big lockdown, centralized quarantine, and
contact tracing for sure accelerated the decline.
○ Lawrence O. Gostin, director of the WHO Collaborating
Center on National and Global Health Law at Georgetown
University, points to “major human rights” concerns with the
lockdown techniques pioneered in China and now adopted
in many nations.
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
- Eliminate racism and xenophobia
- Deploy technology
- Limit restrictions and surveillance
- Permit dissent
- All governments bear the primary responsibility to respect, protect, and
fulfil human rights.
- International human rights law permits governments to suspend
certain rights while ensuring realization of other rights, provided
the suspension follows certain specific norms.
Quarantines, Lockdowns, and Restrictions
- Quarantining large groups of people or isolating them can only be done as
per the law, be strictly necessary to achieve a specific and legitimate
objective, rely on scientific evidence, and should not be arbitrary or
discriminatory.
- The decision to quarantine should be:
- Time-bound,
- respect human dignity, and
- be subject to review
- ​Quarantined people should have access to basic necessities of life,
including food, water, shelter, and healthcare.
- Human rights experts also recommend that quarantines where needed
should be compatible with human rights norms and laws, which means:
- coercion should be used only where strictly necessary, and
- the measures should be transparent, fair, and resource
dependent.
Surveillance Risks
- Technology can provide valuable clues to governments trying to trace the
spread of the virus by monitoring telecom traffic.
- Telecom companies can provide valuable insights that can help in
identifying areas and individuals that require special attention.
- Companies have provided governments with ‘heat maps’ that can help
determine movements of people during the spread of the disease.
- At the same time, such surveillance is a real threat to respect for human
rights.
- The real costs of such intrusive surveillance will be borne by the
marginalized and economically weak sections of the society.
Racism and Xenophobia
- People who may have visited impacted areas have been barred entry in
some countries. There have been racist and xenophobic attacks on
Asians, including the Chinese, or those judged by appearance to be from
China, in several countries over recent months over fears relating to
COVID-19.
- Businesses must offer services to all users, regardless of their ethnicity,
nationality, or any other distinguishing characteristics while safeguarding
the rights of their own workers.
Migrant Workers
- Migrant workers – international as well as within a country – have been
particularly vulnerable during this crisis.
- Migrant workers typically do not enjoy the same rights as citizens of the
host country, which leaves them in a precarious situation during a crisis
such as the one at present.
Women
- Women may not find it easy to work from home because in many
societies, they are expected to bear a disproportionately large workload at
home.
- This includes caring for children and the elderly, cooking, and
performing other household chores, which their male partners may
be unwilling to perform.
- Women in abusive, violent, or manipulative relations with their partners or
within their families may be at heightened risk when they are forced to stay
at home for longer hours, increasing their vulnerability.
- There has been an alarming surging in domestic violence against
women during this pandemic.
33
The Poor
- The virus is indiscriminate and affects everyone.
- Wealth, religion, dietary habits, gender, physical fitness, or social
status offer no immunity to individuals or groups.
- But it is already clear that COVID-19 disproportionately impacts the poor,
in part because they lack the resources to take adequate precautions.
All rights are important
- Rights are too often seen in terms of needs, and the state grants them as
privileges. That is wrong.
- Not all governments have similar resources and not all societies are at a
similar stage of development.
- Consequently, companies which have the capacity to act (because of their
assets or the resources at their command) are often expected to play a
larger role in helping the state meet its objectives to protect human rights,
even if they may not have any legal obligation to do so.
- It is also true that governments in some cases are in fact unable to meet
their obligations (due to lack of resources or the nature of the crisis) while
in others they are simply unwilling to do so, which too raises expectations
among some that companies must do more.
- Companies have clear responsibilities towards their employees.
- But it is also the case that they have a responsibility towards
contractors and their employees (in particular those who work on
premises) as well as suppliers, associates, and other partners,
consumers, and wider society and the general public who are
affected by a company’s presence and operations.
Part II – ​Corporate Responsibility to Respect Human Rights​ onwards
The UN Guiding Principles on Business and Human Rights (UNGPs) expect
businesses to…
- undertake due diligence and assess impacts of their operations and
conduct in terms of respect for all rights, including the right to health;
- take all possible steps to mitigate any harms;
- ensure that conduct does not cause or contribute towards harms; address
risks identified as salient; and
- enable the realisation of all rights, including the right to health, by using all
forms of available leverage
Premise – Business enterprises should respect human rights. This means that
they should avoid infringing on the human rights of others and should address
adverse human rights impacts with which they are involved.
Duty of Care
- Companies operating in countries where COVID-19 is virulent have a
special duty of care towards their staff and others impacted by their
activities. But in societies without adequate resources, they face ​enhanced
expectations and bear a ​bigger responsibility to offer assistance to those
who are affected.
- This means:
- Providing a range of measures, including providing safe and
sanitary work conditions in situations where workers have no
choice but to work from an office, workplace or any other facility
other than their home.
- Protecting workers from exposure to the virus by offering
necessary tools, including equipment such as face-masks and
disinfectants for staff members likely to encounter the general
public as part of their work.
- Taking reasonable care to protect staff from contracting the virus
through direct physical exposure to visitors and customers.
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
ensures their health coverage for a limited period) and not laid them off (in
which case they might lose such coverage).
- Some company chief executives have decided to reduce or forego their
salaries this year as a sign of leadership and commitment to the welfare of
staff. In this context, companies also need to re-examine their severance
policies.
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
as an exercise of sovereignty. The measure must be (1) made in good
faith; (2) non-discriminatory/ targeted to a specific business; (3) with
rational basis/ proportionate to the objective; (4) with limited adverse
impacts to the business; (5) an effective means to protect public health
(Atty. Panlilio’s talk, with reference to the ​Philip Morris c​ ase).
● In the context of COVID 19 measures, investment treaties may serve as
restraints or checks on the power of sovereignty of states. Examples of
these restraints are: (1) the procedural recourse in investment treaties,
such as arbitration clauses; (2) applying IL in settling disputes, instead of
● Commonly encountered types of IIAs
● According to the UNCTAD World Investment Report of 2016, there
are 3,304 IIAs of which 2,946 are BITs
● First BIT was signed between Pakistan and Germany in 1959
● There was a rise of BITs in the 1990s and early 2000s
● According to a more recent UNCTAD report, the 2010's has seen
a decline in treaty making (in 2017, there were only 18 IIAs
concluded, half of which were BITs)
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
authority to review the sovereign decisions of host states
directed at public welfare
- Whether these claims are well grounded in the context of
tribunal assessing the FET standards
- ​[Attempts at reform] Inclusion of an independent investment court
system or an appeal procedure
Right to Regulate
Legal Basis of the Right to Regulate
● Based on the international legal principle of state sovereignty
○ Under IL, sovereignty has internal and external dimensions
○ The right to regulate is an expression of internal sovereignty
○ The right to regulate, in relation to sovereignty, includes the state’s
right to:
■ prescribe laws that set boundaries of the public order of
the state on its territory
■ protect public interest of the citizens, such as public health
and safety
■ Choose its methods for achieving its regulatory objectives
● In the context of investment law, investment treaties and arbitration cases
have resulted in limitations being placed on state sovereignty.
○ For instance, disputes in public health have instigated a
discussion on the extent to which investment agreements are able
to limit a state’s internal sovereignty.
The Right to Regulate in IIAs
● The right to regulate has been implicitly specified through general and
specific exceptions in IIAs, such as those relating to public morals and
health.
○ Example of a ​general exception clause​: “​Nothing in this
Agreement shall be construed to prevent a Party from adapting or
enforcing measures (a) to protect human, animal, or plant life of
health; (b) ensure compliance with laws and regulations that are
not inconsistent with the provisions of this Agreement; or (c) for
the conservation of living or nonliving exhaustible natural
resources.” ​(Art. 10, Canada-Peru BIT(2006)).
○ Even though the above provision does not refer to the right to
regulate, such general exception clause shows the intent of
contracting states to enhance regulatory flexibility by allowing host
states to still regulate foreign investment without incurring
international liability for their actions.
○ By inserting such general exceptions, states attempt to preserve
regulatory flexibility in designated policy areas.
● The right is also included in IIAs’ preambular statements, specific
provisions regulating particular public interests (such as environment or
labor) and through exceptions in the context of the substantive provisions
such as expropriation or FET (fair and equitable treatment).
● The right to regulate is sometimes incorporated through reference to the
protection of a specific public interest in the operative part of the treaty.
○ Example: “​Non-discriminatory regulatory actions by a Party that
are designed and applied to protect a legitimate public welfare
objectives, such as public health, safety, and the environment, do
not constitute indirect expropriations.​ ” (US Model BIT of 2012)
● The concept of the right to regulate is also found in specific provisions on
corporate social responsibility.
○ Example: “​Contracting Party should encourage enterprises… to
voluntarily incorporate internationally recognized standards of
corporate social responsibility in their practices…. These
principles address issues such as labor, environment, human
rights, community relations, and anti-corruption.” ​(Benin-Canada
BIT).
○ The incorporation of CSR standards suggests the increasing role
of the responsibilities of foreign investors in international
investment law.
○ The above type of provision does not impose direct obligations,
but recognizes the role of companies in furthering labor, human
rights, and environmental issues.
● Some provisions however are formulated as a positive obligation for the
state, such as the obligation not to lower environmental standards.
● There are provisions in some IAAs that have a direct reference to the right
to regulate.
○ 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
development in its territory is consistent with the goals and
principles of sustainable development, and with other legitimate
social and economic policy objectives.”​ (Art. 20.1, South Africant
Development Community (SADC) Model Bilateral Investment
Treaty Template of 2012).
○ The above provision provides qualification for the right to regulate,
such as it must be consistent with the principle of sustainable
development.
○ This provision emphasizes that the state’s right to regulate should
not be compromised in the course of complying with investment
obligations.
● Some provisions indicate that the right to regulate should be balanced
against the rights of investors under the treaty. This ensures that the
arbitrators shall not consider investment treaties purely as investor’s rights.
It reaffirms the Host State’s right to regulate investments in public
interests.
● In EU draft investment agreements, there is an explicit provision on the
state’s right to regulate, which shall extend to legitimate policy objectives
and protection of public interest, such as health, social services,
education, safety, environment, privacy and data protection, and cultural
diversity.
The Right to Regulate in FET Investment Cases
● In international investment cases, various tribunals have referred to the
right to regulate, especially in examining regulatory conduct in
expropriation and FET claims.
● Alvik - The right to regulate has increasingly been conceptualized in
investment jurisprudence as an inherent power of the state (police
powers), which is defined through a distinction between legitimate
non-compensable regulation and deprivatory regulation equivalent in effect
of expropriation or a breach of, for example, fair and equitable treatment
standard in an investment treaty.
● Several investment tribunals underlined that the right to regulate is
provided by international law and that this right is limited by investment
obligations.
■ In ADC v. Hungary, the Tribunal stated that while a sovereign
State possesses the inherent right to regulate its domestic affairs,
the exercise of such right is not unlimited and must have its
boundaries. In this case, the rule of law, which includes treaty
obligations, provides such boundaries. Therefore, when a State
enters into a bilateral investment treaty, it becomes bound by it
and the investment protection obligations it undertook therein must
be honored rather than be ignored by a later argument of the
State’s right to regulate.
○ Other elements have been highlighted in several decisions which are
divided into three broad categories:
1. States have the right to change and modify their laws as an
integral part of their ability to regulate.
a. This has been stressed by tribunals primarily in the
context of an assessment of the legitimate expectations of
the investor.
b. This was emphasized by tribunals as a result of multiple
investors’ claims in which they have challenged regulatory
amendments made by host states.
i. The reasoning employed by investors was that
such alterations have negatively affected their
investment and have therefore frustrated the
legitimate expectations of the investor.
c. In Saluka v. Czech Republic, the tribunal stated “no
investor may reasonably expect that the circumstances
prevailing at the time the investment is made remain
totally unchanged.”
d. In Parkerings v. Lithuania, tribunal has emphasised that “it
is each State’s undeniable right and privilege to exercise
its sovereign legislative power. A State has the right to
enact, modify or cancel a law at its own discretion ....”
e. In El Paso v. Argentina, the tribunal in assessing the FET
standard stated that “the state has to be able to make the
reasonable changes called for by the circumstances and
cannot be considered to have accepted a freeze on the
evolution of its legal system.”
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 2. Importance of a special public interest of the state, e.g. health
protection, in the context of the right to regulate.
a. In in Thunderbird v. Mexico, tribunal stressed that:
“:\Mexico has in this context a wide regulatory ‘space’ for
regulation; in the regulation of the gambling industry,
governments have a particularly wide scope of regulation
reflecting national views on public morals. Mexico can
permit or prohibit any forms of gambling. It can change its
regulatory policy and it has a wide discretion with respect
to how it carries out such policies by regulation and
administrative conduct.
b. In Philip Morris v. Uruguay, tribunal stated that “the
responsibility for public health measures rests with the
government and investment tribunals should pay great
deference to governmental judgments of national needs in
matters such as the protection of public health.”
3. Precision in articulating the criteria for the state’s conduct to be
lawful.
a. Several tribunals have underlined that a state in
exercising its right to regulate should not be ‘unreasonable
or inequitable in the exercise of its legislative power’ and
that its conduct should not ‘manifestly violate the
requirements of consistency, transparency,
even-handedness and non- discrimination’.
i. These criteria are certainly not exhaustive.
However, these elements represent the basic
conditions, which are applicable to a state’s right
to regulate as emphasised in investment
decisions.
○ To summarise, tribunals generally refer to the right to regulate in FET
cases. Primarily, tribunals have reaffirmed that states have the right to
regulate which is​ ​limited by the obligations of states under IIA provisions.
The Right to Regulate in Academic Literature
The Right to Regulate in International Investment Law (Titi)
○ Right to Regulate = ​The legal right exceptionally permitting the host state
to regulate in derogation of international commitments it has undertaken
by means of an investment agreement without incurring a duty to
compensate
○ The right to regulate is a legal right derived from several sources
■ Conventional law (law found in investment treaties)
■ Treaty-based exemptions (general exceptions applied to the entire
treaty and exceptions to substantive provisions in the respective
standards of treatment)
■ General international law
○ Under the first two categories, states incorporate the right to regulate in
IIAs primarily through the inclusion of specific exceptions to a particular
standard of treatment or through a general set of exceptions that are
detached from the specific standard of treatment
○ The third category refers to the right to regulate under customary
international law as reflected in the International Law Commission’s (ILC’s)
Articles on State Responsibility
■ Customary international law defences that are reflected in the ILC
Articles
■ Practical availability of these defences to host states during
investment arbitration
Public Interest Areas: ​Based on Titi’s research, there are several
interests to be protected in accordance with the right to regulate within IIAs
1. Essential state security - includes economic security, access to
strategic industries, essential interests in preserving political or
economic survival and a balance, the preservation of international
peace and security and circumstances of extreme emergency
2. Public order - Various meanings depending on the treaties but
sometimes refers to riots and violence or measures taken to
ensure public health and safety
3. Regulations taken in the public interest - Refers to the general
welfare qualified by a list of specific interests or individual interests
Titi’s Contribution
- Outlines the different applications and implications of the right to
regulate through exceptions found in treaties, or t​he extent to
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 which general international law or arbitral jurisprudence may or not
accommodate state regulatory flexibility
- Makes distinction between the explicit right to regulate and the
implicit right to regulate
- Implicit right to regulate = ​Evaluated on the basis of
decisions of arbitral tribunals
- She investigates whether arbitral tribunals have implicitly
acknowledged the state’s right to regulate, even in the
absence of a specific treaty provision or defences
provided by customary international law
- She concluded that tribunals have not been eager to take
into account the state’s right to regulate, especially in FET
standard and expropriation claims
- 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
International Investment Law and the Right to regulate: A Human
Rights Perspective (Mouyal)
- Right to Regulate = ​Affirmation of the sovereign right for states
to choose their political, social, and economic priorities- within
certain limits- through the adoption of legislation and
administrative practices without violating international rules and
protecting foreign investments
- Argues that the human rights legal regime have altered the
concept of sovereignty
- Alteration has formed an ​underlying assumption that
states can make binding commitments (ie. by concluding
BITs) provided that they can still take measures to comply
with international obligations to make certain policy
prioritizations (under the duty to regulate)
- The right to regulate is occasionally transformed into a ​duty to
regulate ​when the human rights context is at stake
- She refers to the obligations under the ICESCR
- Under the ICESCR, a state has the ​duty to make certain
minimum policy prioritizations
- Humanisation of international law affects the right to regulate in
general international law by adding the element of the underlying
human rights presumptions
- Mouya’s definition of the right to regulate includes a broad range of state
priorities (socia, economic, political( in the interest of which states have a
right to regulate
- She argues that by exercising the right to regulate, states’s should not be
made liable under international rules protecting foreign investments
- Note that Titi only referred to the absence of a duty to compensate
as outlined in her definition of the right to regulate
- Distinction is relevant as according to the case of ​Biwater v.
Tanzania, ​liability can be established without a duty to
compensate
Principal Difference Between the Two Approaches
- Titi: ​Right to regulate as a relevant juridical concept that
constitutes an exception to the obligation to project
investments
- Mouyal: ​From a human rights perspective, the right to
regulate can take priority over the investment obligations
of states
Elements of the Right to Regulate
○ First, ​the right to regulate is limited by the state’s obligations under
international law such as the obligation to provide fair and equitable
treatment (FET) under an IIA.
○ Second, ​the right to regulate is an integral part in balancing the rights and
obligations of investors and the investments of host states.
■ [Discussion] The right to regulate has two dimensions. First, from
the perspective of investors, in some cases where the state
exercises its regulatory authority, which may undermine the
stability of the investment climate and generate adverse effects for
investments. Second, from the perspective of the state, however,
in addition to fulfilling its obligations under the applicable IIA, the
state has a prerogative to ensure public welfare for its population
through the exercise of its regulatory authority
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 ○ Third, ​the right to regulate might be specified by the inclusion of the public
interest and/or legitimate policy objectives in IIAs.
■ [Discussion] The public interest usually denotes a state’s
regulation taken in the interest of the “welfare of the general
public”. Consequently, in some IIAs, contracting parties tend to
specify what is referred to when reference is made to the public
interest.
■ In order to specify particular public interests, in a number of IIAs
states have inserted exceptions for particular - or a group of
particular - public interest that contracting parties have intended to
omit from the scope of investment protection. Certain public
interests such as the protection of the environment and health,
labor standards and Corporate Social Responsibility (CSR) are
public areas that have frequently appeared in recent treaties
○ Fourth, ​another element that is applicable includes the consequences
which result from exercising the right to regulate, namely in which
circumstances, a state, when exercising its right to regulate, is or is not
liable towards an investor or does not have an obligation to pay
compensation
II. Case
Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos
S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7
Award dated: July 8, 2016
Applicable treaty: Switzerland–Uruguay Bilateral Investment Treaty (BIT)
Forum and applicable procedural rules: International Centre for Settlement of
Investment Disputes (ICSID), ICSID Rules of Procedure for Arbitration
Proceedings
Key takeaways:
● The tribunal affirmed the police power doctrine and set out that a state
does not need to prove a direct causal link between the measure and any
observed public health outcomes. It stressed that it is sufficient that
measures reflect a reasonable attempt to address a public health concern
and are taken in good faith.
● On police power: conditions for a valid exercise thereof
(a) Must be a ​bona fide exercise of regulatory powers for the purpose
of protecting public welfare
(b) Must be ​non-discriminatory
(c) Must be ​proportionate
● On indirect expropriation: To succeed in a claim of indirect expropriation,
an investor must show that it has been ‘substantially deprived’ of the
value, use or enjoyment of its investment – not simply that it has suffered
some loss.
● On FET: ‘the requirements of legitimate expectations and legal stability as
manifestations of the FET standard do not affect the State’s rights to
exercise its sovereign authority to legislate and to adapt its legal system to
changing circumstances.’
FACTS
Uruguay has one of Latin America’s highest smoking rates. Against this
background, Uruguay has engaged in important anti-smoking policy measures and
adopted two principal regulations:
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
2. The 80/80 Regulation of 2009​: under a presidential decree which
provides that health warnings cover 80% of the packaging instead of 50%.
In February 2010, three subsidiary companies of Philip Morris International (PMI)
initiated an ​investment arbitration claim at the International Centre for the
Settlement of Investment Disputes (ICSID), an arbitration panel of the World Bank.
PMI alleged that ​two of Uruguay’s tobacco control laws ​mentioned above
violated the Bilateral Investment Treaty (BIT) with Switzerland. Claimant claims
the ff: (1) That the 2008 regulation substantially affected the company's value
since it had to pull out 7 of its 13 product variants and (2) that the 2009 regulation
wrongfully limited PM's right to use its legally protected trademark by infringing on
its intellectual property rights and thus further reduced the value of its investment.
43
PMI brought the claim after legal challenges in Uruguay’s domestic courts but the
Philip Morris subsidiaries had failed.
SELECT LEGAL ISSUES & RULINGS
(1) Support From the “International Public Health Community” and the Role
of the Framework Convention on Tobacco Control (FCTC)
● The participation of the WHO, the Pan American Health Organization
(PAHO) and the FCTC Secretariatby submitting amicus briefs in these
proceedings is interesting to highlight, since the evidence provided by
these entities was crucial for the tribunal’s assessment on the
effectiveness and reasonableness of the disputed measures.
● As the WHO and FCTC Secretariat noted, large graphic health warnings
are an effective means of informing consumers of the risks of tobacco
consumption and of discouraging tobacco consumption. Therefore, the
submissions supported that the Uruguayan measures are effective means
of protecting public health
● The award underscored the importance of the WHO FCTC in setting
tobacco control objectives and establishing the evidence base for
measures
(2) Ownership of the trademarks under Uruguayan law governing intellectual
property
● The Claimants’ expert has opined that product variants fall within the
scope of protection because they maintain the essential distinctive
features and only differ slightly with respect to non-essential elements.
Therefore, the Marlboro Gold is substantially identical to the registered
Marlboro Lights trademark.
● The Respondent’s expert stated that “unlike other legal systems, the
Uruguayan system does not provide protection for derivative trademarks
(or trademark variants) or for trademark families” and that Marlboro Gold
is an alteration of the distinctive character of Marlboro Light.
● The Tribunal assumed, without deciding, that the trademarks continued to
be protected under the Uruguay Trademark Law. The Tribunal has taken
note that the Law did not deny protection to alterations based on the first
registration, but decided it is not necessary to reach a definitive conclusion
on this issue. The main issue over the trademarks was what rights a
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
exclusive right to challenge a third party attempting to register or use the
same trademark.
○ First, the Tribunal noted that nothing in the Paris Convention
states that a trademark grants a positive right to use and agreed
that a better interpretation is that the exclusive right to use is
simply the other side of the coin of the “right to prevent any person
from performing”.
○ Second, the Tribunal, considering whether a trademark is a
property right under Uruguayan law conferring on its holder the
right to use the trademark concerned, found that ​nothing supports
the conclusion that a trademark amounts to an absolute,
inalienable right to use that is somehow protected or guaranteed
against any regulation that might limit or restrict its use. The
Tribunal concluded that ownership of trademark confers an
exclusive right to exclude third parties from the market so that only
the trademark holder has the possibility to use the trademark in
commerce, subject to the State’s regulatory power​.
(3) Indirect expropriation
● PM argued that the regulations constituted an indirect expropriation of its
brand assets, including intellectual property and goodwill associated with
each of its brand variants
● Tribunal agreed with Uruguay that the measures could not constitute an
expropriation mostly because they were a legitimate exercise of its
sovereign police power to protect public health. First, it confirmed that the
measure did not have the effect of substantial deprivation of the
investment since Philip Morris was able to continue its business of selling
tobacco products in Uruguay.
○ “Indirect expropriation" - requires a substantial deprivation of the
value, use, or enjoyment of the investor's investments.
○ Tribunal: “as long as sufficient value remains after the Challenged
Measures are implemented, there is no expropriation’ and that ‘a
partial loss of the profits that the investment would have yielded
44
 absent the measure does not confer an expropriatory character on
the measure”
● Second, even if such a deprivation had occurred, Uruguay validly
exercised its police powers to further support its finding that there was no
expropriation. The award makes it very clear that public health policy
relates to heightened public welfare concerns.
○ Tribunal: that it was sufficient for the purposes of defeating the
expropriation claim to demonstrate that a measure was ‘directed’
to a public health end and ‘capable of contributing to its
achievement
● Applying these principles to the 80/80 Regulation, the Tribunal held that
‘there is not even a prima facie case of indirect expropriation..THe
Marlboro brand and other distinctive elements continued to appear on
cigarette packs in Uruguay, recognisable as such’. Limiting the space
available for such purpose on the front and back of the pack to 20% of the
external surface ‘could not have a substantial effect on the Claimants’
business since it considered only a limitation imposed by law on the
modalities of use of the relevant trademarks.
● More importantly, the Tribunal concluded that the regulations have been
adopted in fulfillment of Uruguay’s national and international legal
obligations for the protection of public health. The measures also satisfied
the conditions of the police power doctrine (​bona fide exercise of
regulatory power for the protection of pubic welfare, non-discriminatory,
and proportionate​) as they were adopted in good faith and for the purpose
of protecting public health and were non-discriminatory and proportionate.
● It was noted that the expropriation provision contained in the
Switzerland–Uruguay BIT does not include a reference to the police power
of states. However, the tribunal considered that the provision must be
interpreted in accordance with Article 31(3)(c) of the Vienna Convention on
the Law of Treaties (VCLT), which requires that the provision must be
interpreted in light of “[a]ny relevant rule of international law applicable to
the relations between the parties.”
● 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
as a rational basis standard. It is enough that the measure is ‘directed to
achieving the aim of reducing smoking and ‘capable of contributing to its
achievement’.
(4) Fair and Equitable Treatment
● PM further argued that the measures were arbitrary, since they failed to
serve a public purpose but caused substantial harm, and thus breached
the FET standard.
● Tribunal held that the measures (1) were not arbitrary and (2) PM could
not have any legitimate expectations that Uruguay would not impose
stricter tobacco regulation.
● The Tribunal held that a measure was ‘reasonable’ at the time of adoption
would not be arbitrary. This was to be determined by reference to whether:
1) the measure was an attempt to address a real public health concern, 2)
measure taken by the State was ‘not disproportionate’ to that concern, 3)
measure was adopted in good faith.
● The tribunal made reference to the margin of appreciation as developed in
the jurisprudence of the European Court of Human Rights. In particular,
the tribunal held that the responsibility for public health measure rests with
the government and that investment tribunals should pay great deference
to governmental judgments for national needs in matters such as the
protection of public health.
- Substantial deference was required for matters of public policy
regarding ‘acknowledged and major public health problems; only
measures that were ​entirely lacking in justification or ​wholly
disproportionate​ would breach FET
● Referring to the Glamis Gold v. United States award,[2] the tribunal held
that the sole inquiry for the tribunal is whether or not there was a manifest
lack of reasons for the legislation
● For the 2008 regulation, the tribunal found it to be reasonable because it
was an attempt to address real public health concerns. As to the 2009
regulation, the majority further underlined the importance of deference that
has to be given to the state when it has to balance between conflicting
considerations and held that it was a reasonable measure adopted in good
faith to implement an obligation assumed by the state under the FCTC.
(5) FET in relation to legitimate expectations for a stable regulatory
environment as regards tobacco regulations
45
 ● Also claimed that Uruguay breached the FET standard because its
legitimate expectation that the regulatory environment would not drastically
change had been frustrated
● The tribunal dismissed these arguments and stated that legitimate
expectations could not exist when general legislation changes. In
particular, such changes were not prevented by the FET standard “if they
did not exceed the exercise of the host State’s normal regulatory power in
pursuance of a public interest and did not modify the legal framework
relied upon by an investor at the time of its investment ‘outside of an
acceptable margin of change’”
● On the contrary, the tribunal found that in the light of the “widely accepted
articulations of international concern for the harmful effect of tobacco, the
expectation could only have been of progressively more stringent
regulation of the sale and use of tobacco products"
● An investor can only rely on legitimate expectations if ​specific
undertakings were made by the host State to that investor. Legitimate
expectations do not derive from generally applicable legislation.
(6) Denial of Justice
● The Claimants argued that a denial of justice may result from a “refusal to
judge”, a breach of due process, arbitrariness, gross incompetence, or a
pretense of form. Neither bad faith nor malicious intent are required. The
Respondent broadly agreed, but emphasized that there is a high threshold
to prove a denial of justice requiring clear and convincing evidence of an
egregious conduct of judicial proceedings, resulting in an outrageous
failure of the judicial system and the exhaustion of all reasonably available
and potentially effective local remedies, including constitutional and
extraordinary remedies.
● The Tribunal observed that for a denial of justice to exist under
international law there must be “clear evidence of … an outrageous failure
of the judicial system” or a demonstration of “systemic injustice” or that
“the impugned decision was clearly improper and discreditable” and that
“grave procedural errors” may result in a denial of justice depending on the
circumstances of each case.
(7) With Regard to the 80/80 Regulation
● Tribunal found that Uruguay’s large graphic health warnings were
designed to implement the WHO FCTC, based on an internationally
accepted principle of having large health warnings to inform consumers of
the risks of smoking, and supported by behavioural research regarding the
effects of the increased warning size on thoughts of quitting.
● It found that the WHO FCTC and its Guidelines, while leaving the final
determination of the size of health warnings to each individual
government, recommended that health warnings be as large as possible
● Moreover, beyond the principle in the WHO FCTC that the health warnings
should be ‘large’, the ultimate size of health warnings was a matter for
government, unless the limit set was ‘entirely lacking in justification or
wholly disproportionate’.
● Hence, the 80% requirement ‘was a reasonable measure adopted in good
faith to implement an obligation assumed by the State under the FCTC’.
(8) Last Few Notes
● Public health measures fall within the police powers doctrine, and are
therefore not an expropriation provided that they are non-discriminatory,
proportionate, and taken in good faith: ‘The Challenged Measures were
taken by Uruguay with a view to protect public health in fulfilment of its
national and international obligations. For reasons which will be explored
in detail in relation to claims under Article 3(2) of the BIT, in the Tribunal’s
view the Challenged Measures were both adopted in good faith and were
nondiscriminatory.’
● The measures’ public health objective was important to the determination
of whether or not they were ‘arbitrary’ under the FET standard
● ‘Manufacturers and distributors of products that are harmful to health, such
as cigarettes,’ can have no expectation that new and more onerous
regulations will not be imposed’
● Uruguay’s rights (and duties) to legislate to protect public health meant
that the claimant had no legitimate expectations that the use of their
trademarks would be guaranteed against regulation to ‘prevent, limit or
condition the commercialization of a product or service’
● A margin of appreciation applies to state regulatory measures, ‘at least in
contexts of public health’
​DISPOSITION
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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

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