Private Actors as Participants in International Law

Armando Rocha is Associate Dean of Católica Global School of Law, and Professor of International Law at the Lisbon School of Law, Portugal.

1. Introduction
1. Setting the Scene
1.1. The Position of Private Actors in the LOSC
1.2. An Historical Account of Private Actors’ Apartheid from International Law and the Law of the Sea
1.2.1. The Gradual Building of the Vattelian Premise
1.2.2. The Ongoing Erosion of the Vattelian Premise
1.3. Private Actors’ Participation through Interpretation
2. Scheme of the Book

2. Participation of Private Actors as Subjects of Law
1. The Epistemological Function of Legal Personality
2. The Concept of Legal Personality in the Theory of Law
3. States’ International Legal Personality: A Historical Redundancy
3.1. States as the Centrepiece of International Law
3.2. Reaffirming the Redundancy: States-only Conception of International Legal Personality
3.3. The Advent of Private Actors: Individuals-only Conception of International Legal Personality
4. Criteria for Assessing the International Legal Personality of Private Actors
4.1. The Criteria Adopted by the ICJ
4.2. A Composite Concept of International Legal Personality of Private Actors
4.3. A Procedural Concept of International Legal Personality
4.4. A Formal Concept of International Legal Personality
5. The Source of a Misconception: Legal Personality and Legal Capacity
5.1. The Ordeals of Private Actors’ International Legal Personality
5.2. Single (Not Multiple) Legal Personality
5.3. Legal Personality as a Status Prior to a Given Legal Order
5.4. An Open and Empty Concept(ion)
5.5. An Inclusive Concept(ion)
6. Conclusion

3. Unveiling Private Actors’ Entitlements
1. Entitlements Deriving from Freedom of Navigation
1.1. The Right of Innocent Passage
1.2. The Role of Nationality of a Vessel as a Condition for the Enjoyment of Navigational Entitlements
2. The Puzzling Reference to Ships
2.1. Ships as Apparent Rights-holders
2.2. The Pragmatic Reason for Assigning Rights to Ships
3. States and Private Actors Navigational Rights-holders
3.1. States as Navigational Rights-holders
3.2. Private Actors as Navigational Rights-holders
3.2.1. The Structure and Obligational Scope of the LOSC’s Provisions
3.2.2. Conferral of Rights Irrespective of Direct Effect
4. Intertwining the Position of Ship-owners and Flag States
4.1. The Genuine Link Requirement
4.2. The Indirect Responsibility of the Flag State
4.3. The Obligation of Due Diligence
5. Right to Compensation
5.1. The Grounds for Lawful Interference with Navigation
5.2. The Holder of the Right to Compensation
6. Conclusion

4. The Narrow Reading of Explicit Private Actors’ Entitlements
1. Rights Emerging from the Activities in the Area
1.1. The Ontological Function of the (State-like) Authority
1.2. The Participation of Private Miners in Activities in the Area
1.3. Entitlements of Private Miners
1.3.1. Pre-contractual Rights of the Applicants
1.3.1.1. Selection of the Contractor. Right to the Approval of the Plan of Work
1.3.1.2. Procedural Entitlements of the Applicants
1.3.2. Contractual Entitlements of Private Miners
1.3.3. The Locus Standi of Private Miners in Disputes Arising Out of Deep Seabed Mining
1.4. The Responsibility of Private Miners, the Authority and Sponsoring States
1.4.1. The Accountability of Private Miners and the Authority
1.4.2. The Accountability of Sponsoring States
2. The Locus Standi of Private Actors in Prompt Release Applications
2.1. The Function of Prompt Release Proceedings in the Framework of the LOSC
2.2. The Submission of Applications on Behalf of the Flag State
2.3. The Importance of Having Remedies
3. Conclusion

5. Taking Systemic Interpretation Seriously
1. The Common Genetic Code of the Law of the Sea and Human Rights Law
2. The Application of Human Rights Treaties at Sea
2.1. Jurisdiction as a Precondition of Human Rights Application
2.2. Human Rights Jurisdiction at Sea
3. Human Rights in the LOSC: Particularly, Repression of Slavery and the Protection of Human Life
3.1. Repression of Slavery
3.1.1. What Amounts to Slavery?
3.1.2. The Obligational Scope of Articles 99 and 110(1)(b) of the LOSC
3.2. The Protection of Life at Sea
3.2.1. Protection of Life under Article 98 of the LOSC
3.2.2. Protection of Life under Article 146 of the LOSC
4. Conclusion

6. Conclusion