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Afps And Plo V. Alstom and Veolia (Versailles CT. APP.)

Published online by Cambridge University Press:  20 January 2017

Noah Rubins  and
Gisèle Tephens-Chu
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Extract

International legal personality has often been viewed as synonymous with statehood. States are the primary subjects of international law, and only they have general competence on the international plane, including the competence to create the law. However, in the 1949 Reparation for Injuries advisory opinion, the International Court of Justice (ICJ) acknowledged that forms of international legal personality other than statehood could exist. In determining whether the United Nations (UN) was an international person, the ICJ considered the functions and rights which had been conferred on the organization pursuant to the UN Charter. Although these were found to be distinct from the rights and duties possessed by States, the ICJ concluded that these necessarily involved “a large measure of international personality and the capacity to operate on an international plane.” According to the Court, the hallmarks of international legal personality included the ability to possess international rights and duties and the capacity to maintain such rights by bringing international claims.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 5 , October 2013 , pp. 1157 - 1184
Copyright
Copyright © American Society of International Law 2013

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References

1 See, e.g., Robert, McCorquodale, The Individual and the International Legal System , in International Law 284–310 Google Scholar ( Malcolm, D. Evans ed., 3d ed. 2010 Google Scholar); James, Crawford, Brownlie’s Principles of Public International Law 115–126 (8th ed. 2012)Google Scholar; see also Roland, Portmann, Legal Personality in International Law (2010)Google Scholar; Kate, Parlett, The Individual in the International Legal System (2011)Google Scholar.

2 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 178 (Apr. 11) (“The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.”).

3 Id. at 179.

4 See Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 P.C.I.J. (ser. B) No. 15, 17-18 (Mar. 3) (stating that individuals may have rights directly arising under international treaties).

5 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Regulations to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539; Hague Convention (IX) Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 Stat. 2351, T.S. No. 51; Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of the Victims of International Armed Conflicts (Protocol I), Jun. 8, 1977, 1125 U.N.T.S. 3.

6 The contracts appear to have been governed by Israeli law.

7 In parallel, the AFPS brought administrative court proceedings against the French State for its support to Alstom and Veolia in bidding for the concession. These proceedings were also dismissed.

8 The Court also dismissed a subsidiary claim that, through their participation in the tramway project, Alstom and Veolia had violated their commitment to abide by international law arising by virtue of their adherence to the Global Compact and their internal ethical code.

9 1958 Const., art. 55 (“Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.”).

10 Portmann, , supra note 2, at 20. See also Oppenheim’s International Law vol. 1 16-22 Google Scholar ( Robert, Jennings & Arthur, Watts eds., 9th ed. 1996)Google Scholar. Indeed, this issue has arisen in a set of cases before the I.C.J. concerning the application of Article 36(1) of the Vienna Convention on Consular Relations. See, e.g., La Grand Case (Germany v. United States of America), Judgment, 2001 I.C.J. 466 (June 27); Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, 2004 I.C.J. 12 (Mar. 31).

11 Crawford, supra note 1, at 121.

12 Id.

13 See, e.g., Treaty between United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment Art. VII, Nov. 14, 1991, 31 I.L.M. 128 (1992); North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993).

14 See, e.g., International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 U.N.T.S. 3; Protocol to the International Convention on Civil Liability for Oil Pollution Damage, Nov. 19, 1976, 1225 U.N.T.S. 355; Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution, Nov. 27, 1992, 1956 U.N.T.S. 285. See also International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Dec. 18, 1971, 1110 U.N.T.S. 57; Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Nov. 19, 1976, 1862 U.N.T.S 509; Protocol of 1992 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992, Nov. 27, 1992, 1956 U.N.T.S 255.

15 Convention for the Protection of Human Rights and Fundamental Freedoms art. 34, Nov. 4, 1950, 213 U.N.T.S. 222; American Convention on Human Rights art. 44, Nov. 22, 1969, 1144 U.N.T.S. 143; African Charter on Human and Peoples’ Rights art. 56, June 27, 1981, 1520 U.N.T.S. 217.

16 For instance, the Court observed that there was no prohibition in the conventions regulating the occupation of foreign territory on the construction of a public transport system; indeed, it was incumbent on the occupying power to re-establish normal public activities in the occupied territory.

17 See, e.g., Comm. on Human Rights, Subcomm on the Promotion and Protection of Human Rights, Economic, Social and Cultural Rights: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, ¶18, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003) (“Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law.”). The former U.N. Commission on Human Rights drafted the proposal.

18 See, e.g., Convention on the Protection of the Environment through Criminal Law art. 9, Nov. 4, 1998 (not yet in force); United Nations Convention Against Corruption art. 12, Oct. 31, 2003, 2349 U.N.T.S. 41; U.N. Convention Against Transnational Organized Crime art. 10, Nov. 15, 2000, 2225 U.N.T.S. 209.

19 Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, developed by Professor John Ruggie, Special Representative to the Secretary-General on the issue of human rights and transnational corporations and business enterprises, and endorsed by the U.N. Human Rights Council in its Resolution 17/4, (Jun. 16, 2011).

20 See U.N. Human Rights Committee, Concluding Observations on the Sixth Periodic Report of Germany, ¶16, U.N. Doc. CCPR/C/DEU/CO/6 (Nov. 12, 2012) (“Germany [must] set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. . . [and] take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad”).