Forum 6: The Individual

Chaired by Professor Françoise Hampson

Since the fall of the Berlin Wall, the individual has assumed new prominence in international law. Individual criminal responsibility has come to the fore in the activity of the various ad hoc tribunals and the  permanent International Criminal Court. Individuals enjoy procedural and perhaps substantive rights under the more than 2,500 bilateral investment treaties. With Protocol 11 to the European Convention on Human Rights and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the capacity of individuals to enforce human rights for themselves on the international plane has been enlarged. But do these developments signal a fundamental reorientation of the international legal order or do they serve merely to obscure, and thereby perhaps to entrench, its continuing state-centrism?

The Individual Investor as the Initiator of Emerging Trends in Investment Treaty Interpretation

PROFESSOR KAJ HOBÉR, Professor of International Law, CEPMLP, University of Dundee; Partner, Mannheimer Swartling Stockholm

Abstract: A number of arbitral tribunals have recently utilized different approaches to interpret the definition of an “investor” and an “investment” for the purposes of rendering an award pursuant to an international investment treaty. This has caused concerns for private individual investors and governments. Due to these inconsistent approaches, it is useful to examine the new unchartered waters of treaty interpretation that has now been coming to the surface.

At the time the Vienna Convention on the Law of Treaties was adopted, everyone was living in a world where the interested parties were sovereign states. Now, we have private individuals and investors pushing traditional principles of public international law into new areas. This has resulted in the emergence of new trends as arbitral tribunals attempt to define an “investor” and an “investment” set forth in the applicable investment treaty. While some arbitral tribunals have followed an enumerated set of criteria, others have chosen a different path using a more black letter or textual approach in light of the Vienna Convention on the Law of Treaties. Further, some arbitral tribunals have used various aspects of the investment treaty, such as the preamble or annex, to interpret and attempt to understand the true intentions that the drafters had for a particular term. Other arbitral tribunals have placed particular emphasis on bilateral or multilateral negotiations in the drafting stage and/or other factors outside the four corners of the treaty.

This paper will aim to illustrate the different approaches in treaty interpretation that we see from time to time in cases relating to international investment disputes. An overall analysis on the efficiency of public international law, through the eyes of an individual, will also be discussed with respect to investment treaty arbitration.

Biography: Kaj Hobér is Professor of International Law at the Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP), University of Dundee. He is also a Partner in Mannheimer Swartling, Stockholm. He has written extensively on international investment arbitrations, including interstate arbitrations and investment arbitrations. Professor Hobér regularly acts as counsel and arbitrator in international arbitrations.

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The Individual as an Independent Participant in International Law

PROFESSOR ROBERT McCORQUODALE, Director, British Institute of International and Comparative Law; Professor  of International Law and Human Rights, University of Nottingham

Abstract:  This paper considers the extent to which the individual, including groups of individuals, is an independent participant in the international legal system. This participation is explored by reference to the ability of individuals to participate in the creation, development, and enforcement of international law.

Consideration is given to the extent to which individuals are creators of international law in their interpretation and compliance activities, the role of corporations in terms of their international responsibility and dispute settlement role, and the degree to which armed opposition groups can be subject to international legal obligations. There will be analysis as to whether individuals are independent participants in that system, and are not solely objects that are subject to States’ consent, and whether their degree of participation varies depending on the changing nature of the international legal system.

Biography: Professor Robert McCorquodale is the Director of the British Institute of International and Comparative Law in London. He is also Professor of International Law and Human Rights, and former Head of the School of Law, at the University of Nottingham. Previously he was a Fellow and Lecturer in Law at St. John's College, University of Cambridge and at the Australian National University in Canberra and, prior to this, he worked as a qualified lawyer with leading law firms in Sydney and London.

Robert’s research and teaching interests are in the areas of public international law and human rights law. He has published widely on these areas, and has provided advice to governments, corporations, international organisations, non-governmental organisations and peoples, including advising on the drafting of new constitutions and conducting human rights training courses.

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The Individual as a Catalyst of Change in International Law

ASSOCIATE PROFESSOR LINOS-ALEXANDER SICILIANOS, Associate Professor of International Law, University of Athens

Abstract: Overview of the main changes, since 1989, due to the emergence of the individual and groups of individuals (minorities, indigenous peoples, etc.) as subjects of international law. Impact on the structure of international law. Selected impacts on the system of sources of international law. Impact on the law of State responsibility and on the UN system of collective security.

Biography: Born in Athens in 1960. Assoc. Professor, Dr., University of Athens. Member of the Curatorium of the Hague Academy of International Law. Former Vice-chairman of the UN Committee on the Elimination of Racial Discrimination. Member of the Executive Board of the EU Fundamental Rights Agency. Vice-chairman of the Greek National Commission on Human Rights. Member of the Scientific Advisory Board of the European Journal of International Law. Visiting professor in various academic institutions, including the Hague Academy of International Law, Universities of Paris-I, Paris-II, Oxford, Geneva, Strasbourg, Aix-Marseille, etc. Has published 4 monographs, including in RCADI, vol. 339, and numerous articles and studies in Greek, French and English on general international law (State responsibility, sanctions, use of force), human rights and international organizations.

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