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In-Depth Information
Furthermore, it does not sufficiently answer the complex question of international
law subjectivity.
384
The ICSID Convention argument also does not work. The
investor is only capable of using ICSID as an arbitration platform, because the
state previously agreed that the ICSID Convention is applicable (in other words:
only the state can trigger ICSID jurisdiction).
385
Finally, there is the fact that being
a subject of international law includes rights and obligations. It is difficult to argue
that TNCs have an international obligation of any kind.
386
There is also an attempt to grant TNCs international legal personality because of
the already existing power of TNCs.
387
One author argues that the main purpose of
international law is peaceful cooperation.
388
Hence, it should actually accept and
implement the accumulated power of TNCs.
389
However, this approach does not
work because it does not define what “influential power” actually means and
requires.
390
As the PCIJ mentioned
(a)ny contract which is not a contract between States in
their capacity as subjects of international law is based on the municipal law of some
country.
'
391
The ICJ mentioned that a contract cannot relate to both international
and municipal law at the same time.
392
In the case, the ICJ decided that a contract
between a state and a private company is not a source of international law because it
is a mere contract.
393
Based on the literature and the rulings of the PCIJ and the ICJ, TNCs do not have
legal personality within international law at the moment and the contracts of TNCs
are not subject to international law. The only exception could be internationaliza-
tion and stabilization clauses. However, these do not transform TNCs into subjects
of international law. Instead, they “merely” lead to an application of international
law. There is no intention that the partial international contract leads to functional
subjectivity of a TNC.
'
384
Dahm et al. (
2002
), 257; Not accepted in international law, in: Schweisfurth (
2006
), 51 para
167.
385
Hobe (
2002
), 249 (251); Metje (
2008
), 106; Tietje (
2005
), 47 (61-62); Tietje (
2003
), 5 (16);
However the feature that a sovereign state is sued by a private investor leads to special classifi-
cation of the ICSID system within international law, in: UNCTAD (
2010a
), 10.
386
Metje (
2008
), 106-107; No subject of international law, in: Muchlinski (
2009
), 341 (342).
387
Including further references, in: Weh (
2008
), 160-162.
388
Dahm et al. (
1989
), 40 et seq; Weh (
2008
), 160-162.
389
Weh (
2008
), 161.
390
Weh (
2008
), 161-162.
391
PCIJ [1929] Judgement (Case Concerning the Payment of Various Serbian Loans Issued in
France), 31.
392
ICJ [1952] Anglo-Iranian Oil Co. Case, Preliminary Objection—Judgment, 93 (111-112).
393
ICJ [1952] Anglo-Iranian Oil Co. Case, Preliminary Objection—Judgment, 93 (111-112).
