CYIL vol. 11 (2020)

CYIL 11 (2020) SOVEREIGN WEALTH FUND these interventions necessarily, in most cases, have a political dimension. International trade cannot be merely about apolitical private property and contractual rights and obligations. 60 The content of the public and private domains has not remained constant 61 and the private- public tension is felt to a greater degree in terms of the relation of public international law to SWFs. The lack of regulation over SWFs on a global scale and the insufficiency of public international law in respect of SWFs call forth the idea that personal, discrete, individualized, intimate, and voluntary ties between countries – political relations between countries – rule SWFs. 6. Public international law The public/private distinction is more contested in international law than in national law. Public international law deals with states, international organizations and, to a limited extent, corporations and individuals that raise an international legal interest. 62 The SWF concerns all those actors and raises an international legal interest – there is a public international law dimension of SWFs. It is impossible to frame SWFs in a purely private contractual realm. Although public international law aims at averting, containing and settling disputes 63 and at ensuring the provision of (essential) material goods and services, 64 it cannot fulfill those aims in respect of SWFs. The international community – the community of states – has made a choice and it has left the question of SWFs to be determined by national laws and national authorities, rather than by international law and an international authority. Thus, jurisdiction in respect to SWF belongs to national laws. Arguably, SWFs constitute a vital interest for states worldwide, whether they are in the home state or the host state, and vital interests are non-justiciable disputes. 65 They are not amenable to regulation or adjudication under public international law. SWFs are rather regarded as “political” matters. They are not to be dealt with by the process of an international legal decision-making. 66 The UnitedNations Charter – the ultimate instrument that represents public international law – does not touch upon or mention SWFs. The Economic and Social Council, one of the six main organs of the United Nations, still cannot initiate regulation of SWFs. This is natural as the United Nations Charter lacks a genuine economic and financial dimension. Although there are some references to the world economy and to prosperity in the United Nations Charter, they are somewhat formulaic and superficial. 67 Indeed, the United Nations Charter does not consider economic or financial intervention as a use of force against sovereign nations. 68 Article 2(4) of the United Nations Charter, which 60 Ibid., p. 263. 61 Ibid., p. 262. 62 CUTLER, A. Claire, Artifice, Ideology and Paradox: The Public/Private Distinction in International Law, Review of International Political Economy , vol. 4, no. 2, p. 264. 63 HIGGINS, Rosalyn, Problems and Process, International Law and How We Use It, Clarendon Press, Oxford, 2007, p. VI (preface). 64 Ibid., p. 1. 65 HIGGINS, Rosalyn, Themes and Theories, Selected Essays, Speeches, and Writings in International Law, Oxford University Press, 2009, p. 26. 66 Ibid., p. 42. 67 e.g., United Nations Charter, Article 1(3): “The Purposes of the United Nations are: “…To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, …” 68 LOWE, Vaughan & TZANAKOPOULOS, Antonios, Economic Warfare, Max Planck Encylopedia of Public International Law , 2013, para. 29.

457