فهرست مطالب جمال سیفی

The International Law Commission published two separate draft articles on international responsibility in 2001 and 2011. Each draft article deals with the international responsibility of one subject of international law, namely, States or international organizations; however, the two drafts contain many similar or even identical provisions to one another. Among those provisions, the two articles in each draft article that refer to the general conditions for incurring international responsibility are significantly identical. Pursuant to those articles, international responsibility arises when a legal person commits an internationally wrongful act. This paper discusses the theoretical as well as practical difficulties that would arise from applying the same general conditions for the responsibility of states to the responsibility of international organizations. Having illustrated the difference between states and international organizations as to the number and type of international obligations, the paper will then focus on the attribution of the conduct of an organ to the international organizations by discussing different judicial opinions on the issue.

The attributability of actions to states within the context of investment treaty disputes and to focus on the roles played by international and domestic laws in such attributions have caught the attention of jurists in recent years. The ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, and particularly, article 3 points to the main outcome of this debate, where it does not consider domestic law irrelevant in internationally wrongful acts and stipulates that the issue is subject to international law and it will take into account the relevance of domestic law. Thus, although the characterization of an act of a State as internationally wrongful is an independent function of international law and such characterization is not affected by the characterization of the same act as lawful by domestic law, it does not mean that domestic law is irrelevant to such description; on the contrary, it may be related in various ways. The present article attempts to examine the challenging junction of domestic and international law with regard to the attributability of actions taken within the framework of investment treaties, specifically by state-owned and para-statal entities that exercise elements of state authority.

The prevailing narrative in international legal scholarship has always been that international courts and tribunals have faced objective legal rules to be applied completely to concrete cases. According to this viewpoint, the principles and rules of international law should not be interpreted through presuppositions, and that one should always adjudicate impartially. Presenting the epistemological explanation of applying abstract rules to concrete cases, the present article defends the claim that there is no interpretation without presuppositions, and that some certain extra-legal assumptions always channelize the understanding and interpretation of the norm concerned. Accordingly, the concept of ‘legal policy’ in international law can be unveiled which so far has not been a matter for consideration so much and, at best, it has been considered as an equivalence for the term ‘judicial policy’. Legal policy in international law carries the message that there is no single ‘right answer’ for each legal issue, and that international courts and tribunals cannot lay the blame upon others who create the law by a mere mechanical application of detached rules from realities of international community. One should always bear in mind that the line of demarcation between lex lata and lex ferenda is not a positive rule, but a theoretical construct and therefore, fluid.

Today, supporting foreign investors is considered as an instrument to achieve economic growth and development within national development plans, particularly in the developing states. Rising concerns for reasonable expectations of investors, have led to the increase of interests in investment in other countries. On the other hand and simultaneously, protecting human rights is recognized as one of the obligations of states. In some instances, human rights and environmental considerations, particularly economic, social and cultural ones clash with the obligations of host states to protect foreign investors. The question arising here is what legal mechanism may prevent such a clash? Investment-related arbitral jurisprudence demonstrates that arbitrators have avoided dealing with this conflict, recognizing it beyond the competence of investment arbitration, while the need for a reasonable effort to incorporate human rights obligations in investment treaties by way of revising them is felt more than before.

After entry into force of the Lisbon Treaty and extension of Jurisdiction European Union to foreign investment, certain conflict between investment agreements and EU rules come to light, which caused difficulties to third states and even to EU member States. The European Union tried to resolve the problem with third countries through a specific Regulation. However, with respect to the investment treaties concluded between the members States, the European union made its mission to terminate these treaties. On the other hand, reference of investment disputes to arbitration involving EU member States, has led to decision by the respective arbitral tribunals on the basis of international law rather than EU Law. This has Caused, Opposition by the EU institutions. The strongest of these reaction was made in the Micula Case. The European Commission Expressed the view that the enforcement of the arbitration award was unlawful as it constituted state aid, which is prohibited under the EU law. However, despite the European Commission’s Opposition, the award remains enforceable under the ICSID system. In summary, the EU law in this area contains ambiguities and is capable of generating uncertainty as to the fate and enforceability of bilateral investment treaties.

In the absence of a fully organized super-State in the field of international relations, it is recognized that the injured State may take countermeasures in response to a breach of an international obligation. However, the scope and the circumstances of resort to countermeasures are not unlimited, especially when dealing with States which have violated their human-rights obligations. Human-rights obligations enjoy particular characteristics and are different from other obligations in certain respects among which are the object and purpose of the human-rights obligations. They are intended to facilitate the enjoyment of human-rights and freedoms by the human beings rather than the regulation of reciprocal inter-state relations. For these reasons, resort to countermeasures in the event of breach of human-rights obligations is either prohibited or it should be made in a manner which does not impair the full application and enforcement of the human-rights obligations.