[IntLawProfessors] TNC's international obligations

[Marko Milanovic]

Dear all,

I think that this is a fascinating question. I wasn't aware of the OAS Charter article that Don cites. However, I've recently written a piece in the JICJ on whether treaties generally, and Rome Statute specifically, can directly bind individuals on the international plane without transformation in domestic law. The manuscript is available on SSRN, while the final paginated article is available through Oxford Journals.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1690606

Comments are of course most welcome! Best,

Marko



________________________________
From: Carl Bruch [mailto:bruch at eli.org]
Sent: 13 May 2011 01:50
To: Caroline Foster; Don Anton; intlawprofessors at mailman.anu.edu.au
Subject: Re: [IntLawProfessors] TNC's international obligations

Interesting question ... If there was intent, why could states not bind private entities?  States can bind individuals (viz. the Rome Statute) without domestic implementing legislation, why not corporate entities?

There is some interesting scholarship regarding whether the Rome Statue applies to corporations and armed groups, but I am having difficulty getting past the plain language of article 25(1) ("The Court shall have jurisdiction over natural persons pursuant to this Statute.").

In any case, it seems clear that States can and do create obligations for natural persons that do not require those persons to consent to being bound, and that no domestic implementing framework is necessary to subject the natural persons to the rules in a treaty.  I see no reason that States could not do the same for legal persons.

Are there any examples where international treaties have targeted nongovernmental entities, for example in terrorism (e.g., freezing and seizing assets)?

I look forward to other responses on this thread.

Warm regards,
Carl

*********************************************
Carl Bruch
Senior Attorney
Co-Director, International Programs
Environmental Law Institute
2000 L Street NW, Suite 620
Washington, DC 20036
Tel:  (202) 939-3879
Fax:  (202) 939-3868
*********************************************


________________________________
From: intlawprofessors-bounces at mailman.anu.edu.au on behalf of Caroline Foster
Sent: Thu 5/12/2011 5:04 PM
To: Don Anton; intlawprofessors at mailman.anu.edu.au
Subject: Re: [IntLawProfessors] TNC's international obligations

Dear Don/colleagues,

It seems to me that the starting point is that where the TNCs are not party to an instrument (the Charter) purporting to subject them to legal obligations it is very hard at the moment to argue that they are bound directly -  but if there is an obligation on States to create a domestic legal framework subjecting the TNCs to the rules in a treaty and States comply with this oblgiation then the TNCs will become bound by the content of the treaty as a matter of national law.

However the Charter provision raises some very interesting issues.  Is there any way that a State's consent for private entities, of certain classes or generally, to be bound can in any degree bind them?  Or any way in which the law might develop towards this?  To what extent does the ITLOS opinion indicate that this is a direction in which we will see more movement, or point the way?
--

Dr. Caroline E. Foster
BA LLB (Cantuar) LLM PHD (Cantab)
Senior Lecturer,  Faculty of Law

Room 2.16, Bldg 803
9 Eden Crescent
University of Auckland
Private Bag 92019
New Zealand

From: Don Anton <AntonD at law.anu.edu.au<mailto:AntonD at law.anu.edu.au>>
Date: Fri, 13 May 2011 06:55:24 +1000
To: <intlawprofessors at mailman.anu.edu.au<mailto:intlawprofessors at mailman.anu.edu.au>>
Subject: [IntLawProfessors] TNC's international obligations

Dear Colleagues,

This post picks up on part of the exchange that Caroline Foster's post on ITLOS Case No. 17 back in early March prompted on international obligations of private parties.

In particular, I'd like to learn thoughts you may have about the operation of Art. 36 (former Art. 35 until the Protocol of Washington entered into force) of the Charter of the Organization of American States. I am interested to see whether you think this provision subjects the activities and omissions of TNCs ("shall be subject") to the provisions of all "international treaties and agreements" in particular OAS countries in which they operate.  In other words, do TNCs not only need to be mindful of municipal legislation, but also all treaties which are binding (regardless of "transformation" that may be constitutionally required).

 Art. 36 provides:
Transnational enterprises and foreign private investment shall be subject to the legislation of the host countries and to the jurisdiction of their competent courts and to the international treaties and agreements to which said countries are parties, and should conform to the development policies of the recipient countries.

Kind regards,
DA

Intlawprofessors is moderated by Don Anton and hosted by the Australian National University College of Law
This message and any attachment are intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to me, and immediately delete it.   Please do not use, copy or disclose the information contained in this message or in any attachment.  Any views or opinions expressed by the author of this email do not necessarily reflect the views of the University of Nottingham.

This message has been checked for viruses but the contents of an attachment
may still contain software viruses which could damage your computer system:
you are advised to perform your own checks. Email communications with the
University of Nottingham may be monitored as permitted by UK legislation.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.anu.edu.au/pipermail/intlawprofessors/attachments/20110513/3f9b905d/attachment.html