It is submitted that the expropriation made by State of MacQuaid over the property of Jubilee Company is invalid because of the absence of the payment of just compensation. The matter may be contested before international tribunals as long as the matter is brought by the United States Government in behalf of our client. However, it is unlikely that the case commenced by Jubilee Company before the US District Court will succeed because a sovereign state like MacQuaid cannot be placed under the jurisdiction of our courts, unless of course, the State of MacQuaid will consent to that which is also unlikely. And finally sir, I believe our client will ultimately lose their property in MacQuaid should the latter still proceed with condemning our client’s property and will pay just compensation, for then, the exercise of the power of eminent domain will be valid and can no longer be nullified.
THE PROCEDURAL QUESTIONS
1.) Can Jubilee Company sue the State of McQuaid before the United States District Courts for violations of International Law?
No, it can not. It is a universally accepted principle in international law that a sovereign state can not be sued in the courts of another sovereign for to do so would derogate upon the sovereignty of the sued state. Prescinding from the same principle, it follows to reason that the US District Courts cannot promulgate a judgment against McQuaid which will be enforceable against McQuaid. Thus, the whole adjudication process in the US District Courts will become a futile exercise.
However, there is one exception to this rigid rule. MacQuaid may be sued before the US District Courts should the State of MacQuaid give its consent to be so sued. However, this is an unlikely development of events and it will not be prudent to expect that such a state of things will happen
2.) Can Jubilee Company sue the State of McQuaid before the international tribunal established by the TFBDC?
No, it can not. Under international law, only States, and in certain cases, international organizations, have the personality to sue before international tribunals.
However, the act of Jubilee Company in asking assistance from the Government of the United States to enforce its claim before the international tribunals was proper. In fact, it was a well-advised remedy since it is the United States which has the personality to bring such claim in behalf of its nationals. Thus, the matter can be brought before the tribunal established by the TFBDC.
Yet again, even though only states and international organizations are the subjects of international law, there is a growing acceptance of making individuals the subject of international law. We have seen the promulgation of the International Covenant on Civil and Political Rights which covers the rights of individuals yet contained in an international statute. The same goes with other conventions which deal with the rights of stateless individuals and the rights of a child. If the trend is going towards the granting of legal personality to individuals before international tribunals, then it is noteworthy to raise it here in this case since the jurisdiction of international tribunals is permissive and parties may agree to come before it and settle their claims there.
To bolster this argument, in the Texaco vs. Libya case, the Arbitrator, Professor Dupuy reviewed and rejected the positivist doctrine of the 19th and 20th centuries that held that international law could only bind states. Neither the classical law of nations of the 17th and 18th centuries nor the modern international law of the later 20th century have held such a restrictive view. Both actually permit individuals, including private corporations, as well as states to be the subjects of international law.
3.) Can the case be brought before the ICJ?
No, the case cannot be taken cognizance by the ICJ. Under Article 34 of the ICJ Statute, only States can be party-litigants before it. This provision precludes Jubilee Company from taking the case before the ICJ.
However, if it is the United States Government which will bring the suit before the ICJ in behalf of Jubilee Company, then the matter can be referred to such tribunal. This can be done if both parties agree to bring the matter before the ICJ. This procedure is viable under Article 36 of the ICJ Statute. Such provision states in part that the jurisdiction of the Court comprises all cases which the parties refer to it. Thus, as long as both the United States and McQuaid agree to refer the matter to the ICJ, then the matter at hand may be resolved in such tribunal.
THE SUBSTANTIVE QUESTIONS
4.) First, can the State of McQuaid validly make a municipal law which allows expropriation without paying just compensation?
Yes, it can do so based on the principle that a state has absolute sovereignty over its own territory. A state has absolute discretion what laws to promulgate as it deems fit to the domestic conditions it is dealing with. It has absolute sovereignty within its own territory and no state, nor any other organization, is allowed to interfere in the domestic affairs of a state.
However, there is a way to contest this municipal law as invalid in an international forum using the concept of jus cogens. It is an established international norm that the expropriation of property is always for just compensation. It has been so long accepted a principle that to modify it will violate international norms of justice and fair play and such a rule may be struck down and rendered without force and effect in the international setting. This is how jus cogens operates.
5.) Second, can the State of McQuaid invoke this municipal law to justify its expropriation of the property of Jubilee Company?
No, it cannot do so, primarily because it is bound by the TFBDC which states that “expropriations that are not for a public purpose, or are discriminatory, or are not accompanied by just compensation shall be unlawful.” MacQuaid has the bounden duty to comply with this treaty stipulation. The doctrine off pacta sunt servanda, as echoed by Article 26 of the Vienna Convention on the Law of Treaties, states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. This means that the State of McQuaid must comply with this treaty stipulation in good faith since it has entered into such treaty.
It cannot invoke the fact that the United States has made reservations with regards to the treaty to excuse it from complying with the treaty stipulation. Article 21 of the Vienna Convention states that the reservation (made by another state) does not modify the provisions of the treaty for the other parties to the treaty inter se. Thus, the reservations made by the United States does not in any way affect the applicability of the treaty to the State of MacQuaid.
MacQuaid also cannot invoke the fact that the United States has not yet passed the implementing legislation for the treaty. Such is a purely internal matter over which the State of MacQuaid has no business to inquire into.
Secondarily, it cannot invoke its own municipal law, which allows expropriation without just compensation, to justify the expropriation of Jubilee Company’s property. The reason is found on Article 27 of the Vienna Convention on the Law of Treaties which states that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This renders the internal law McQuaid without force of effect in the face of the treaty in which it entered into.
6.) Can the United States invoke the TFBDC even though the US Congress ratified it with reservations and still has not legislated its implementing law?
Yes, the TFBDC is already in force and effect. Under Article 11 of the Vienna Convention, The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. Since the TFBDC has already been ratified by the US Government, it is already in force and effect as far as the international community is concerned and may be validly raised by the US Government to enforce its provisions. The reservation made by the Congress as well as the absence of an implementing legislation does not render the TFBDC ineffective. These are purely domestic matters which the international community may overlook.
The ratification made by the United States with reservations does not preclude it from asserting its provisions against MacQuaid. The reservations only affect the reserving State and the other party to whose respect the reservation was made. Since there was no reservation made by the United States against MacQuaid, then this question on reservation is purely academic.
7.) Is the expropriation itself a valid exercise of the power of eminent domain?
No, the expropriation itself is not valid for the reason stated above i.e. there was no just compensation.
In the Texaco vs. Libya case, there was an agreement between Texaco and Libya stating that Libya will not nationalize the oil fields of Texaco. However, Libya still went on to nationalize the oil fields of Texaco without paying just compensation arguing that there is generally no right to property under international law. It was ruled there that states have no unfettered right to take property without just compensation.
8.) Can Jubilee Company still contest the expropriation of its property in McQuaid should the latter pay just compensation?
No, it can no longer recover the property should the State of MacQuaid pay just compensation. The power of eminent domain is an inherent power of a state and once it is exercised properly, it can no longer be contested. This means that Jubilee company can no longer refuse McQuaid from taking its property. Its only choice is to accept the just compensation given to it in exchange for its property.
The suspicion that the brother of the King of MacQuaid is behind the expropriation is a long shot argument to contest the expropriation. The determination of whether or not the expropriation is for a public purpose is a question to be resolved by the courts of MacQuaid and more likely than not, and as precedents show, the expropriation of the property of Jubilee Company will be found to be for a public purpose.