SUBJECTS OF INTERNATIONAL LAW: RIGHTS AND DUTIES - Bài giảng môn Công pháp quốc tế | Trường Đại học Kinh Tế - Tài Chính Thành phố Hồ Chí Minh

SUBJECTS OF INTERNATIONAL LAW: RIGHTS AND DUTIES LLM. Tran Le Thien Ngan MAIN CONTENT RIGHTS OF RIGHTS OF IMMUNITY RIGHTS OF STATES INTERNATIONAL ORGANISATIONS
THE FUNDAMENTAL RIGHTS OF STATES - The right of equality
- The right of existence and independent - The right of self-defence
- The right of creating international legal norms
- The right of accessing to international and regional organizations THE RIGHT OF EQUALITY
- Article 2 of the Charter of the UN contains
the notion of the “sovereign equality of its members”
- No state may exercise legal jurisdiction over
another → SOVEREIGN IMMUNITY THE RIGHTS OF EXISTENCE AND INDEPENDENCE
Individual self-defense and col ective self-defense
Self-determination: A State has freedom to manage
its affairs without interference from other states PERSONAL SOVEREIGN IMMUNITY A foreign head of state and his or her family enjoy personal sovereign immunity. STATE IMMUNITY
- The scope of immunity enjoyed by a state: The doctrine
of absolute sovereignty and restrictive sovereignty
- At the turn of the 20th century, states developed the ‘restrictive’ concept THE TATE LETTER 1952
- The Tate Letter in 1952 indicated acceptance
of the restrictive theory of immunity by the US government
- The “private activities of foreign
sovereigns” should be denied immunity in American courts
- Republic of Mexico v. Hoffman: once the State
Department has ruled in a matter of this
nature, the judiciary will not interfere.
TH E F OREIG N SO VEREIGN IM MUNITIES ACT ( FSIA) 197 6
• Vested decisions concerning sovereign immunity exclusively in the court,
• Codified the restrictive theory of sovereign immunity with respect to US law,
• Specified the methods for beginning a lawsuit against a foreign state. THE FOREIGN SOVEREIGN
IMMUNITIES ACT (FSIA) 1976
- Distinguish between Public acts (Jure Imperii)
and Private acts (Jure Gestionis)
- The NATURE TEST or the PURPOSE TEST COMMERCIAL ACTIVITY
A "commercial activity" means either a regular course of
commercial conduct or a particular commercial transaction
or act. The commercial character of an activity shall be
determined by reference to the nature of the course of
conduct or particular transaction or act, rather than by reference to its purpose.
CALLEJO V. BANCOMER, S.A. (1985)
• Is the Callejo’s suit based upon a
‘commercial activity’ by Bancomer?
• Does Bancomer have immunity
because of its relationship with the Mexican government? ACT OF STATE DOCTRINE
Whereby acts done by a state in its
own territory cannot be challenged
by the national courts of another state AN INSTRUMENTALITY OR AGENCY
OF A “FOREIGN STATE” UNDER THE FSIA
Dole Food Co. v. Patrickson: A state
must directly own a majority of the
shares in a foreign corporation in
order for the corporation to qualify as
an ‘instrumentality’ under FSIA.
BP CHEMICALS V. JIANGSU SOPO CORP. LTD (2005)
- SOPO is an entity wholly-owned by China, can it be considered a
“foreign state” under the FSIA and be immune from suit in American courts?
- SOPO improperly used and disclosed its trade secrets in the US
territory, what if this action is “based upon a commercial activity carried on in the US”? RIGHTS OF INTERNATIONAL ORGANISATIONS
- International legal personality enjoy immunity from suit
for all non-commercial activity of such agencies
- UN Immunity under the provisions of the UN General
Convention on the Privileges and Immunities of the UN
(1946) includes immunity for UN assets, wherever located, from any legal process; etc. FUNDAMENTAL DUTIES OF STATES
- Not to Intervene in the internal affairs of any other State
- Refrain from the Threat or Use of Force against the territorial integrity
or political independence of another State - Co-operate with other states
- Carry out in good faith the obligations arising out of treaties and other sources of international law
- Abstain from recognising any territorial acquisitions made by a state
acting in violation of the Charter’s provisions
- Settle international disputes by peaceful means DUTIES OF STATES
- Customary international law:
prohibition of intervention, etc… - UN Charter
- Draft Convention on the Rights and Duties of States by the International Law Commission (ILC).
Document Outline

• Slide 1: Subjects of international law: rights and duties
• Slide 2: Main content
• Slide 3: the fundamental rights of states
• Slide 4: The Right of Equality
• Slide 5: The rights of existence and independence
• Slide 6: PERSONAL SOVEREIGN IMMUNITY
• Slide 7: STATE IMMUNITY
• Slide 8: The Tate Letter 1952
• Slide 9: The Foreign Sovereign Immunities Act (FSIA) 1976
• Slide 10: The Foreign Sovereign Immunities Act (FSIA) 1976
• Slide 11: commercial activity
• Slide 12: Callejo v. Bancomer, S.A. (1985)
• Slide 13: Act of State doctrine
• Slide 14: an instrumentality or agency of a “foreign state” under the FSIA
• Slide 15: BP Chemicals v. Jiangsu Sopo Corp. Ltd (2005)
• Slide 16: Rights of international organisations
• Slide 17: FUNDAMENTAL duties of states
• Slide 18: Duties of states