international business law - chapter 2.pptx

7/25/2019 International Business Law - Chapter 2.pptx

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Chapter 2: StateResponsibility and

Environmental Regulation


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Chapter Outline

State responsibility Doctrine of imputability

Nonimputable Acts

ault and Causation

Standard of Care!he National Standard of Care

!he "nternational Standard of Care E#propriation

Denial of $ustice


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Chapter Outline %cont&d'

Ob(ections )ac* of Standing

)ac* of Nationality

)ac* of a +enuine )in*

ailure to E#haust Remedies

Other Ob(ections

Relief

"nsurance ,rivate "nsurers

National "nvestment +uaranty ,rograms

-ultilateral "nvestment +uaranty ,rograms


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Chapter Outline %cont&d'

Environmental protection

Regulation of ,ollution

,rotection of Natural Resources

)iability for Environmental Damage


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"ntroduction

.or a long time/ it has been a tenetof international la0 that a state thatcauses an in(ury to a foreign national

is responsible to the national&s state%but not to the national)for theharm done1

Rationale: an in(ury to a state&snational is an in(ury to that state


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"ntroduction 3 cont&d

4ey 5uestions: 6hen is a state responsible7

6hat standard of responsibility7

6hat defenses states have against8allegations& of mistreatment7

6hat steps aliens and foreign businessescan ta*e to minimi9e potential losses7 "nsurance programs7

6hat about state responsibility to0ardspollution7


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A1 State Responsibility

Rule to establish responsibility for anin(ury to an alien or foreign business:

' conduct consisting of an action or

omission 11 attributle to the State underinternational la0/ and

2' it must constitute ; a breach of

international obligation of the State


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A1 State Responsibility 3cont&d

Doctrine of "mputability 3 a state is onlyresponsible for actions that are attributable to it1 ' acts 0ithin the scope of o


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A1 State Responsibility 3cont&d

Nonimputable Acts

Not responsible for the acts of privatepersons/ acts of o ?ome -issionary Society

Case


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A1 State Responsibility%cont&d'

!errorismand docs!he sustained clandestine use of violence

for a political purpose Case 2=@: lato0 v1 "ran N "nstruments

Notes: Sub(ect matter (urisdiction

E#tra(udicial *illing

State sponsored terrorism

ault and causation
http://www.un.org/en/terrorism/http://www.un.org/en/terrorism/instruments.shtmlhttp://www.un.org/en/terrorism/instruments.shtmlhttp://www.un.org/en/terrorism/instruments.shtmlhttp://www.un.org/en/terrorism/instruments.shtmlhttp://www.un.org/en/terrorism/


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A1 State Responsibility%cont&d'

ault and Causation

-ost case la0B0riters a country isresponsible for in(uries regardless of

fault!herefore/ causation is used1

Did the actBomission of .state produce aneect/ result or conse5uence ; that causedthe in(ury

Note on Remoteness


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1 Standard of Care

National standard of care

Doctrine that a state must treat aliensthe same 0ay that it treats its o0n

nationals1

"nternational standard of care

E#propriation

.6estern vie0point v1 developingcountries See cases 2=/ 2=F and 2=>


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1 Standard of Care %cont&d'

Denial of $ustice

.6hen there is a denial/ un0arranted delayor obstruction of access to courts/ gross

deGciency in the administration of (udicial orremedial process/ failure to provide thoseguarantees 0hich are generally consideredindispensable to the proper administration of

(ustice/ or a manifestly un(ust (udgment/ An error of a national court 0hich does not

produce a manifest in(ustice is not a denial of(ustice1


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Denial of $ustice %cont&d'

Application of National Standard 3advocates say must emphasi9e that

notions of (ustice are relative to eachsociety and that 0hether or not therehas been a denial of (ustice ; re5uiresan understanding of the (udicial systemof the society 0here the case arose


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Denial of $ustice %cont&d'

Case 2=H: Chattin v nited -e#icanStates!a*e a fe0 minutes to familiari9e yourself

0ith the case

!a*e note of the Casepoint and thedissenting opinion

6hat are your .feelings about thiscase7 Note: .general claims commission

I2H

S v -e#ico


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C1 Ob(ections

)ac* of Standing Ob(ection that may be made to an international

tribunal&s e#ercise of (urisdiction 0hen a plaintiis not 5ualiGed to appear before the court1

)ac* of nationality Ob(ection that may be made to an international

tribunal&s e#ercise of (urisdiction 0hen the statebringing suit is doing so on behalf of a person0ho is not a national of that state Calvo Clause:

6ho has the right to 0aive a right7

.birth certiGcate story


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C1 Ob(ections %cont&d'

)ac* of a +enuine )in* Ob(ection that may be made to an international

tribunal&s e#ercise of (urisdiction 0hen there isno real and bona Gde relationship bet0een thestate bringing the suit and the person on 0hosebehalf the suit is brought1

ailure to e#haust remedies Ob(ection that may be made to an international

tribunal&s relief from the defendant state Case 2=J: !he -BK Saiga Case %-erits'


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C1 Ob(ections %cont&d'

Other ob(ections

)aches Negligent delay in asserting a right or claim

Note: principle of e5uity

Dirty hands!he plainti too* inappropriate steps in

attempting to recoup a loss prior to bringing

the claim


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D1 Relief

Restitution in *ind

.in *ind

Satisfaction ?onor returned to state

Compensatory damages money


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E1 "nsurance

"nsurance:

!he contractual commitment by aninsurer to indemnify an insured against

speciGc contingencies and perils Discussion on insurance:


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E1 "nsurance %cont&d'

,rivate "nsurers

See list on page JH

National investment guaranteeprograms E#ample: S Overseas ,rivate

"nvestment Corporation %O,"C'

See E#hibit 2=/ page JJ


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E#propriation DeGnition

Creeping e#propriation See @ reasons for )DCs/ p1 JI

E#propriation through a series of acts thatindividually might be seen asadministrative actions or general health/safety/ or 0elfare measures underta*en bythe government ; 0hich ;1

See O,"C deGnition p1 JI


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O,"C %cont&d' Currency inconvertibility

,olitical violence

6ars/ revolutions/ civil strife/ terrorism

-ultilateral investment guaranteeprograms 6orld an*

-ultilateral "nvestment +uarantee Agency %-"+A' Similar to national programs/ oversight by capital

e#porting and capital importing states


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1 Environmental ,rotection

Stoc*holm Declaration

Rio Declaration

NCCC

4yoto ,rotocol

Agenda 2 Europe 2L2L/ Europe 2LFL

,recautionary approach

States should not delay in ta*ing action to correct a threat ofserious or irreversible damage to the environment merely because

there is a lac* of scientiGc certainty that in(ury 0ill result1 States should !A4E AC!"ON to correct a !?REA! of serious or

irreversible damage to the environment even if there is scientiGcuncertainty that in(ury 0ill result1


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1 Environmental ,rotection %cont&d'

Regulation of ,ollution

Sectoral approach regulating particularsectors of the environment

,roduct approach regulating particularpollutants


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Regulation of ,ollution %cont&d' Sectoral approach:

-arine ,ollution NC)OS %see Article I%'/ p1

I2' -ain duties: minimi9e the:

' release of to#ic/ harmful of no#ious substances fromland based sources

2' pollution from vessels

@' pollution from the installations and devices used inthe e#ploration or e#ploitation of the seabed and itssubsoil

' pollution from other installations and devicesoperating in the marine environment


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Regulation of ,ollution %cont&d' Sectoral approach %cont&d'

-arine ,ollution %cont&d' = Other duties ' not to pollute the environment of neighboring states

2' not to transfer damage or ha9ards from one area toanother or to transform them from one type of pollution toanother

@' not to intentionally or accidentally introduce alien orne0 species into the marine environment

' to notify other aected states 0hen the marineenvironment is in imminent danger of being damaged orhas been damaged by pollution

F' to monitor and assess the ris*s and eects of pollutionand to publish the results of those studies


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-arine ,ollution %cont&d' = Re5uired actions: must.adopt la0s and regulations and .ta*e other

measures to .prevent/ reduce/ and control pollution Once adopted/ these rules may be enforced by:

' Mag states 0ith regard to vessels Mying their Mag

2' port states concerning vessels voluntarily 0ithin theirports

@' coastal states as to vessels navigating 0ithin theirterritorial sea or e#clusive economic 9one or vessels that arefound to be dumping materials onto their continental shelf


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-arine ,ollution %cont&d' 3 Disputes

Disputes bet0een states to be resolved bynegotiation or mediation

Either party may submit the dispute to

"nternational !ribunal for the )a0 of the Sea%"!)OS'

Established by convention "C$

Or mutually agreed arbitration tribunal

See Case 2=L/ p1 I@


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Climate and Air ,ollution 3 nited Nations

rame0or* Convention on Climate Change%NCCC'

-ultilateral convention adopted in II2 and inforce since II1 "t see*s to stabili9e and diminishgreenhouses gases in the atmosphere

Set to address t0o main political problems ' ho0 to distribute the burden of reducing

emissions among dierent countries

2' ho0 to deal 0ith scientiGc uncertainty


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;Sectoral approach %cont&d' Set to address t0o main political problems %cont&d'

' ho0 to distribute the burden of reducing emissionsamong dierent countries %cont&d'

Equityand Common but diferentiated responsibilities Recogni9es that industriali9ed states have historically been the

main sources of the problem and have more resources to address

it

And developing countries are more vulnerable to its adverseaects and have fe0est resources to address problem

Re5uires industriali9ed countrie to ta*e the lead in modifying longterm emission traneds/ and it calls on the richest countries to

provide Gnancial and technological resources to help developingcountries stabili9e their greenhouse gas emissions


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;Sectoral approach %cont&d' Set to address t0o main political problems

%cont&d' 2' ho0 to deal 0ith scientiGc uncertainty %cont&d'

Adoption of the precautionary principleBapproach

See earlier deGnition

.0here there are threats of serious or irreversibledamage/ lac* of full scientiGc certainty should not

be used as a reason for postponing such

measures;

Divides states into t0o main groups 3 Developed%Anne# " countries' and others %non=Anne# "countries'


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;Sectoral approach %cont&d' oth groups have general obligations

'

2' @'

'

F'

>'

Anne# " to bring +?+E to IIL levels byyr 2LLL


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;Sectoral approach %cont&d'

4yoto ,rotocol Supplemental agreement to the NCCC

%IIH'1 Re5uires Anne# " countries to reduce +?+E

by F12 of IIL levels

See reading 2=/ p1 LL


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,roduct regulations!o#ic 6aste

IJI asel Convention on the Control of

!ransboundary -ovements of ?a9ardous6aste and !heir Disposal %in force II2'

orbids the e#port of .ha9ardous 0astes and other0astes to nonstates parties and to states partiesun0illing or incapable of safely accepting them/

and it forbids states parties to import 0astesunless they can safely manage them1

; States must ta*e appropriate actions tominimi9e their o0n production of ha9ardous 0astes


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,roduct regulations %cont&d' Nuclear -aterials

"nternational Atomic Energy Agency %"AEA' ,rimary "+O responsible for supervising the use of

Gssionable materials Responsible for setting up safety standards for the

protection of health and for minimi9ing in(ury to life andproperty

,romotes the peaceful use of nuclear material

Ensure nuclear materials and assistance are not misused Overseeing the nuclear devices and materials of certain

.non=nuclear 0eapons states 3 not diverted to military uses

See ongoing 0or* 0ith "ran and North 4orea


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,rotection of Natural Resources 6orld Charter for Nature

,rinciples '

2' @'

II2 Rio Conference 3 Convention on iologicalDiversity

"dentify and monitor ;

Develop strategies/ plans and programs for ; nderta*e E"A of ;1

Calls upon states to ma*e environmental protection . anintegral part of the development process and not to considerthe t0o in isolation from each other


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,rotection of Natural Resources

)iability for Environmental Damage Nuclear material

-arine oil pollution

international business law - chapter 2.pptx

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