Current Negotiations Research Articles

ACORDO SOBRE BIODIVERSIDADE MARINHA PARA ALÉM DA JURISDIÇÃO NACIONAL (BBNJ): REGIME JURÍDICO INTERNACIONAL DE UTILIZAÇÃO SUSTENTÁVEL DOS RECURSOS GENÉTICOS MARINHOS DO ALTO MAR E DA ÁREA

A Organização das Nações Unidas participa da construção do sistema jurídico marinho. Em sua terceira conferência sobre o direito do mar, adotou-se a Convenção das Nações Unidas sobre o direito do mar (CNUDM), que, tendo dispositivos relacionados com a biodiversidade marinha, não trata expressamente dos recursos genéticos. Diante disso, as Nações Unidas convocaram uma conferência de negociação de um Acordo sobre conservação e utilização sustentável da biodiversidade marinha para além da jurisdição nacional (BBNJ), que se iniciou em 2018. Partindo da análise de dispositivos da CNUDM, que veda a modificação do princípio da liberdade no alto mar e o princípio do patrimônio comum da humanidade na Área, pretende-se propor um modelo de regime jurídico de utilização sustentável da BBNJ a ser adotado ao fim das atuais negociações. Conclui-se que, em razão do disposto na CNUDM, não é possível que os recursos genéticos marinhos para além da jurisdição nacional sejam uniformemente regidos no Acordo. Por conseguinte, os recursos genéticos do alto mar deveriam ser transformados de res nullius em res communis, enquanto aqueles encontrados na Área, por já serem res communis humanitatis, deveriam submetidos à gestão da Autoridade Internacional dos Fundos Marinhos.

The usual suspects? Distribution of collaboration capital in marine biodiversity research

International scientific collaboration is vital for supporting global and regional measures to protect marine biodiversity in and beyond national jurisdiction. While scientists and governments seem to agree that scientific cooperation is also needed to reduce global imbalances to explore and exploit marine biodiversity, progress in defining and assessing developing countries’ needs has been slow. This paper aims to identify some of those needs by mapping the global distribution of scientific publications from the marine biodiversity field from 1990 until 2018. We present bibliographic data gathered from the Web of Science Core Collection using network analysis and article meta-data to examine international cooperation patterns both within and across regions. We introduce a novel measure, ‘collaboration capital’, which, based on metrics derived from a co-authorship network, attempts to gauge how valuable other actors in the network perceive the collaboration with an actor. Our data reveal that the US and Europe’s usual suspects allocate a significant proportion of collaboration capital from all regions. In turn, regional research networks in Asia, South America, and Africa are severely underdeveloped. These results suggest that measures to strengthen scientific collaboration within regions and between neighboring countries may contribute to strengthening regional research networks, for instance, by encouraging large emerging economies such as Brazil and China to become leaders in their regions in this respect. We conclude that capacity-building measures, such as discussed in current marine biodiversity negotiations, should foster regional scale cooperation efforts.

Biological Prospecting in Antarctica – A Solution-Based Approach to Regulating the Collection and Use of Antarctic Marine Biodiversity by Taking the BBNJ Process into Account

Areas beyond national jurisdiction (ABNJ) are covering nearly two-thirds of the world’s oceans and are rich in biological diversity. These also include the Polar Regions, where marine organisms adapted to extreme environments and led to increased scientific interest and activities, including bioprospecting activities. As a result, marine biodiversity is increasingly threatened. Thus, the Convention on Biodiversity (CBD) was established to ensure the conservation and sustainable use of biodiversity but left ABNJ and bioprospecting activities widely unregulated. In Antarctica, for instance, bioprospecting has raised concerns, and the matter has been discussed since 2002. As a result, the United Nations General Assembly (UNGA) Resolution 69/292 concluded the establishment of a new international legally binding instrument (ILBI) on the conservation and sustainable use of marine biological diversity for ABNJ. However, the inclusion of the Antarctic Treaty Area remains unclear. In light of the current BBNJ negotiations, the Antarctic Treaty Consultative Meeting (ATCM) only acknowledges the Antarctic Treaty System (ATS) as the appropriate framework to regulate these activities in Antarctica. Further, it seems to aim for regulation under the ATS, if at all. Therefore, this paper discusses a solution-based approach for possible regulation of the collection and use of Antarctic marine biodiversity. The negotiations and achievements of the current BBNJ process will be taken into account, as they might provide support for the regulation of these issues in Antarctica and the Southern Ocean.

The UK’s Post-Brexit Investment Policy: An Opportunity for New Design Choices

Brexit presents an important opportunity for the UK to reimagine its investment policy. The UK formulated its independent investment policy, separate from the European Union’s, more than a decade ago. Since then, State practice relating to investment protection, facilitation, liberalisation and dispute resolution has changed. New model bilateral investment treaties (BITS) and other recent international investment agreements offer innovations. The UK can learn from these developments in formulating its post-Brexit investment policy. The UK’s recent policy documents suggest that its investment policy will closely track its historical practice. The UK has historically offered investment protection to foreign investors in its bit s. Investors have been allowed to initiate arbitration against States. However, the UK’s current negotiations with the EU suggest that investor protections may be more limited. This article begins by describing the UK’s existing trade agreements and recent trade practice as an EU Member State. It also describes the anticipated impact of Brexit on these arrangements and practices. The next section explains the likely direction of the UK’s future investment policy, as indicated in recent policy documents. The final section offers ideas for selected design choices that the UK could make in formulating its investment policy.

RESEARCH AND PATENTING IN COVID TIMES

Dear Reader, Government of India is currently negotiating a limited trade deal with USA which is likely to be signed after the US elections. Although, the current negotiations do not cover the Intellectual Properties (IP) or Pharmaceuticals, a limited deal if concluded successfully is expected to be followed by a full Trade Deal (FTA), which will include IP and Pharmaceuticals too. In spite of all the negative (or positive?) consequences of COVID-19, the Sars2CoV virus has provided humanity with a great learning experience. Repurposing of known drugs, bio-natural products, biologicals and vaccines such as TB, Leprosy, BCG have all been undertaken in the desperate search for prophylactic, therapeutic as well as preventive options. However it is interesting to note and appreciate that except for pre-existing patent rights (ex:-Remdesivir), there have hardly been any emphases on protecting the Covid remedies through patenting.

Brexit and the Effects of the Proposed EU–UK Partnership Agreement on the Audiovisual Sector

The audiovisual media industry has undergone and is undergoing a phase of global consolidation. While the sector is a significant component of the European economy, it is a special sector from a cultural perspective. Governments have reacted to this by trying to accommodate a tension between commercial objectives and what is perceived as ‘cultural’ objectives. Also the European Union has sought to reconcile these tensions. Now, Brexit poses further challenges for the global media sector, much of whose business activity was based in the UK.While the exact details of what Brexit would mean were unclear in June 2016, they have been partially clarified since then. The aim is to base the future EU/UK relationship on a free trade agreement, not on the Single Market. However, the audiovisual sector will be excluded from this agreement in line with the long-established precedent of a cultural exception in EU trade deals. The sector has widely understood these following extensive debates since 2013, ahead of adopting the EU mandate for the now-abandoned Transatlantic Trade and Investment Partnership (TTIP) negotiations with the US. Many international broadcasting groups have anticipated the end of UK Single Market access after Brexit by relicensing channels and relocating staff into the EU27. While the UK will retain and maybe grow some core strengths, notably around content production, its role as the leading European centre for global media companies is likely to be eroded by new hubs in the EU27, while UK-based media companies will continue to be affected by EU regulation in relation to market access as well as free movement. There are particular issues around data transfers and state aids. This article seeks to evaluate if the current negotiations cater to the interest of the audiovisual sector and if not, why not. Brexit, EU–UK Partnership, Audiovisual, Post-Brexit settlement, Personal Data, State Aid

The EU return system under the Pact on Migration and Asylum: A case of tipped interinstitutional balance?

AbstractThe article holistically discusses the alleged new EU return system which the Pact on Migration and Asylum heralds. Absent any impact assessment accompanying the key draft legislative measures and any implementation report regarding the existing legislative instruments following the 2015 refugee‐protection crisis, it provides both a substantial and a formal assessment of the proposed reform. A substantial analysis reveals that the two main objectives of the EU return system, namely effectiveness and human rights compliance, are pitted against each other to the detriment of human rights compliance and that effectiveness is questionably narrowed to return rate. Looking at the key components of the return system under the Pact and taking into account past interinstitutional negotiations in the field, it shows that the draft proposals are not conducive to fulfilling these objectives. From a formal standpoint, the article questions the weight of the Commission's proposals on the future outcome of the current negotiations based on their lack of legitimacy.

THE NEGOTIATIONS FOR A NEW IMPLEMENTING AGREEMENT UNDER THE UN CONVENTION ON THE LAW OF THE SEA CONCERNING MARINE BIODIVERSITY

AbstractThis article discusses the current negotiations for an Implementing Agreement under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. It discusses, in particular, the issue of the relationship of the new agreement with existing and future relevant regional instruments and bodies and the need for cooperation and coordination amongst them, the guiding principles of the new agreement, and the question of implementation and enforcement of the new agreement. These issues and the choices that delegations will make respectively highlight the controversy on the underpinning tenet of the agreement, ie between the ‘freedom of the high seas’ and the common heritage of mankind. The article concludes with a pessimistic prognosis that, in general, the agreement will fall short of the expectations that many States and international community have had at the early days of the negotiation.

Engendering Progress, Contesting Narratives: Women’s Labor Rhetorics at the 1907 Chicago Industrial Exhibit

ABSTRACT In 1907, prominent Chicago reformers led by Ellen Henrotin and Jane Addams created an Industrial Exhibit showcasing a history of women in the workplace. Seeking to promote women’s entrance into modern, electricity-powered factories, the Exhibit’s organizers portrayed women’s labor progress in three stages: a stage of premodern, domestic-based craftwork; a stage of tenement-based, sweatshop labor; and a stage of modern, factory-based labor. The Exhibit became a site of controversy when workers demonstrating their labor objected to the Exhibit’s message that tenement sweatshops were old-fashioned and unclean by striking. Their strikes disrupted the Exhibit’s timeline of gendered progress and rearticulated the Exhibit as a site of current labor negotiations between workers, management, and the public. While affluent reformers and working women mutually sought labor reform, they used distinct and unequal rhetorical modes to communicate differing narratives about women’s work to the public.

The UK’s Post-Brexit Investment Policy: An Opportunity for New Design Choices

Brexit presents an important opportunity for the UK to reimagine its investment policy. The UK formulated its independent investment policy, separate from the European Union’s, more than a decade ago. Since then, State practice relating to investment protection, facilitation, liberalisation and dispute resolution has changed. New model bilateral investment treaties (BITs) and other recent international investment agreements offer innovations. The UK can learn from these developments in formulating its post-Brexit investment policy. The UK’s recent policy documents suggest that its investment policy will closely track its historical practice. The UK has historically offered investment protection to foreign investors in its BITs. Investors have been allowed to initiate arbitration against States. However, the UK’s current negotiations with the EU suggest that investor protections may be more limited. This article begins by describing the UK’s existing trade agreements and recent trade practice as an EU Member State. It also describes the anticipated impact of Brexit on these arrangements and practices. The next section explains the likely direction of the UK’s future investment policy, as indicated in recent policy documents. The final section offers ideas for selected design choices that the UK could make in formulating its investment policy.

Ядерная проблема Корейского полуострова в 2019 г.: вызовы для региона и России

Despite the détente of 2018, the situation remains tense on the Korean Peninsula. Although the United States of America and Democratic People’s Republic of Korea summits have become almost regular, the two countries struggle to move forward with practical diplomatic work of nuclear issue, and their relations slowly creep towards a new crisis. The aim of this study is to describe the state of affairs on denuclearization or autumn 2019 and offer solutions for political progress. Current negotiations on the Korean Peninsula nuclear problem are exclusively bilateral. As a result, the entire region’s security depends on the outcome of Pyongyang and Washington. At the same time, these two players have very disparate goals and, lacking mutual trust, rarely make concessions on principal issues. For almost the entire 2019 the slipping of real negotiations was accompanied by intensive protocol communication between the leaders of North Korea and the USA. Both parties seemingly realize that they will not be able to agree, but they do not want to proceed to an open conflict just yet. Given the situation, other regional countries first and foremost, Russia should not to remain indifferent observers and call for a switch to multilateralism to ensure equal access to constructing common security.

Why the 2020 U.S.-China Trade Agreement Needs Anti-Corruption Provisions for the Protection of Intellectual Property

The United States has created the ultimate enforcement weapon for its intellectual property (IP) rights in Phase I of the 2020 U.S.-China Economic and Trade Agreement (USCTA). Under the USCTA, the United States has a unilateral right to declare China in breach of the treaty and to impose trade sanctions. The USCTA forbids China from retaliating. China’s only recourse is to withdraw from the USCTA. If China withdraws, however, the United States could reinstate the punitive tariffs that were suspended by the USCTA. As a result, China will be subject to tariffs no matter what it decides, either under the USCTA or due to withdrawal from the USCTA. China has been trapped into a no-win situation. As a matter of legal procedure, the USCTA is innovative and path-breaking; it is also clever and ruthless. As a matter of substantive law, however, the USCTA fails to address problems that have long plagued multinational companies (MNCs) in China. These are problems of pervasive corruption by government and business entities that create barriers to effective on the ground enforcement of IP rights, which is essential to day-to-day operations of MNCs. These problems are especially serious in three areas: demands for payments by PRC authorities in the enforcement of trade secrets, the use of ex parte contacts to influence the results of civil IP litigation, and the use of business bribes in e-commerce platforms that have contributed to an explosion in online sales of counterfeit products. Fortunately, the United States still has an opportunity to address these issues during the current negotiations on the second phase of the USCTA. This article will offer concrete suggestions on how to draft new provisions to address these major substantive problems that have long plagued MNCs in China.

Внешнеторговая политика Д. Трампа: риски и вызовы на уровне штатов

The paper examines the dynamics of exports and imports by states under the President D. Trump’s foreign trade policy; the effects of the unprecedented tariff raising against the United States’ trading partners that keep world trade tensions and uncertainty at high level. While these tariffs provided some protection for certain American producers who face competition with imports, many other producers met with tariffs launched in response by other countries (mainly China) against the U.S.’ exports, which hurt them in different parts of the American economy. By the way, foreign trade policy is remaining one of the topics in the pre-election campaign in states that have both benefited or lost from new tariffs. The paper points out the distribution of exports and imports by states, including products that were mainly hurt by foreign tariffs. The blow of losses driven by tariffs on American agricultural products were softened by the United States’ agricultural subsidies, but the exporters are worrying about the prospect of further escalation of tariff risks which undermine their positions, about uncertainty at foreign markets. As polls show, a large part of registered voters do not believe that current trade negotiations may result in better economic conditions for Americans. The effects of new tariffs vary by states, but in some of them, D. Trump’s trade policy may play its role in the presidential elections, especially in counties more exposed to trade losses and having no gains from the United States’ tariff protection. The economic and trade agreement between the U.S. government and the government of China is of great importance, but seems unreal. Acknowledgements. The article has been supported by a grant of the Russian Foundation for Basic Research (RFBR). Project no. 20-014-00001А “Global and Regional Effects of U.S. Economic Policy in the Second – the Beginning of the Third Decade of the 21st Century: New Challenges and Chances for Russia”.

Implications of the UNCLOS Marine Scientific Research Regime for the Current Negotiations on Access and Benefit Sharing of Marine Genetic Resources in Areas Beyond National Jurisdiction

Access to marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ) and the sharing of benefits arising out of the utilization of these resources are among the most contentious at the UN Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction. This article examines the applicability of the marine scientific research (MSR) regime of the UN Convention on the Law of the Sea (UNCLOS) to the access and benefit-sharing issues. It concludes that the MSR regime of UNCLOS provides the legal basis for setting up nonmonetary-benefit sharing obligations, including the dissemination of information, data, and research results concerning MGRs at the UN negotiations on marine biodiversity in the ABNJ.

Trade in Environmental Goods and Air Pollution: A Mediation Analysis to Estimate Total, Direct and Indirect Effects

Based on panel data covering 114 countries between 1996 and 2011, this study investigates the impact on pollution of trade in environmental goods (EGs). We check the validity of the implicit consequences assumed by the win–win scenario in the current trade-climate negotiations, arguing that market dynamics should guarantee that EGs’ liberalization is ‘automatically’ in the interest of all countries, regardless their market and institutional capacities. We show that trade in EGs alone fail to address environmental problems effectively. In particular, although we found efficiency gains from trade in EGs (in terms of CO2 and SO2 emissions per 1 US$ of GDP), and more recurrently for net exporters than for net importers, our results often failed to highlight environmental effectiveness (in terms of total CO2 and SO2 emissions). A general conclusion that emerges from our empirical results is that trade [in EGs] cannot effectively replace non-market-based solutions, when it comes to non-trade objectives. However, it seems to complement them efficiently. Our multiple-equation GMM estimations reveal specific direct, indirect and total effects on pollution depending on the countries’ net trade status, leading to several policy recommendations for an increased environmental effectiveness of trade in EGs.

The EU and China in a New World Order: Challenges Ahead

This EUCROSS working paper analyzes European Union-China trade relations in the context of the current negotiations for a new comprehensive framework agreement between the European Union (EU) and the People’s Republic of China. China is a strong economic power with increasingly sophisticated production in its coastal regions and is attempting to establish itself as a gravity center by concluding many bilateral free-trade agreements in the region. Although China has a strong hold in the Far East, there may be specific policy areas in which China’s influence ends up being global. The paper is divided into six parts. After the introduction, Part II explains the steps taken for negotiating a new comprehensive framework agreement between China and the European Union. Part III is devoted to EU-China trade relations, and Part IV to the bilateral trade relations from a Chinese perspective. Part V examines the various ways to improve the currently difficult EU-China trade relation, followed by the conclusions in Part VI. The paper concludes that dealing with China was one of the main arguments in favour of ratifying the Treaty of Lisbon because it provides for a permanent president of the European Council and a single foreign affairs post for the entire EU, which facilitates the EU’s coherence in its external affairs. Moreover, the paper concludes that the European Commission should negotiate the prospective Partnership and Cooperation Agreement between the EU and China more constructively, without patronizing, and instead accept China as an equal player in the current multipolar framework of global economic governance.

Exploring the future of the institutional landscape of the oceans beyond national jurisdiction

A comprehensive regime for biodiversity in marine areas beyond national jurisdiction (ABNJ) is currently being negotiated at an intergovernmental conference convened by the United Nations. One of the aspects of the negotiations concerns the institutional arrangements of the treaty that is to be developed. Many activities in ABNJ currently are being regulated at the sectoral and/or regional level, raising the question how the institutional arrangements of the treaty are to interact with these existing frameworks. The article first provides some further information on the background to the current negotiations, then looks at the current status of those negotiations and next attempts to sort out and appraise the options for institutional arrangements. Three main approaches have been tabled: a global approach, a regional approach or a combination of the two. The article concludes that the institutional arrangements of the treaty may be the most critical element in accomplishing an effective regime for the sustainability of ABNJ.

Creating a ‘we’ between categories: social categories and Alevi-Sunni intermarriages

ABSTRACT Through the findings of research on Alevi and Sunni intermarriages in Izmir, Turkey, this article shows how partners in such marriages recognize differences between Sunniness and Aleviness, how they identify themselves in relation to these categories and define them, and how their marriage influences their identifications. The article presents how the intermarried spouses’ own definitions of their background categories reveal the influences of the historical construction of these categories in relation to each another, political stances and current negotiations. Self-identifications and perceptions of differences are handled within these influences while unifying criteria transcending the boundaries of these categories enable them to build on a sense of ‘we’. The findings show the spouses’ ambiguous, fluid, relational and contextual definitions and identifications within their understandings of one another as parts of a ‘we’, their ways of living together despite categorical and group differentiations, and negotiations within local and global discourses.

HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA BILATERAL INVESTMENT TREATY

AbstractThe 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.

Tax-based Own Resources to Finance the EU Budget

In the current negotiations about the European Union’s next medium-term Multiannual Financial Framework (MFF) for the period 2021 to 2027, the system of own resources financing EU expenditures plays a relatively important role.