International Law Regime Research Articles

Hacia un nuevo modelo de Tratado Bilateral de Inversiones para México

El régimen jurídico de los tratados bilaterales de inversiones (en adelante TBI) se encuentra inmerso en una profunda crisis estructural. En este contexto, muchos países re-negocian o denuncian sus TBI vigentes. Otros han ido más lejos y ya han adoptado nuevos modelos de TBI. México parece quedarse al margen de esta crisis global de la regulación jurí-dica internacional de las inversiones extranjeras. Adicionalmente, algunas decisiones guberna-mentales recientes convierten a México en un país, de facto, promotor de la permanencia del actual diseño jurídico-institucional de los TBI. No obstante, en la actualidad, resulta urgente modificar la política exterior de México en la materia y, con este fin, adoptar un nuevo modelo de TBI para nuestro país.

Position Of The International Regime In Contemporary International Law

Nowadays, in addition to the existence of countries as exclusive actors in international relations, many are also non-countries that become actors in international relations. Likewise against international regimes, but the status of international regimes in international law is not clear until now. This journal uses normative-based research by using conceptual approach as the backing of research. The results stated that the international regime in a single capacity is not the subject of international law but its embodiment as an international organization that is the subject of international law. The position of international regimes in contemporary international law in the form of cooperation in the form of international treaties can be a source of international law. In the form of institutions in the form of international organizations can be the domiciled subject of international law.

RESPONSIBILITIES OF STATES SPONSORING PERSONS AND ENTITIES WHO CONDUCT ACTIVITIES IN THE INTERNATIONAL SEABED AREA

The exploitation of seabed has been regulated in the international sea law regime, namely in UNCLOS 1982 and in its modification regulations, the 1994 Implementing Agreement. This regime regulates the sponsorship mechanism whereby companies wishing to carry out activities in the international seabed must cooperate with states participating in UNCLOS 1982. In addition to providing obligations to companies, the international sea law regime also imposes obligations on the sponsoring state. This obligation is related to the steps that the participating states must take to ensure that no violations or damage occur during the project. This article will discuss the legal relationship between the contractor and the sponsoring state, specifically the extent to which the sponsoring state is responsible for the activities of the sponsoring contractor in the ISBA region. To answer this question, the following will be examined: the provisions of the international maritime legal framework, UNCLOS 1982 and related international regulations and examine jurisprudence in related cases, especially in the Advisory Opinion provided by ITLOS in the cases of Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in ISBA (2010). It was found that the international legal framework regulates the state’s responsibility to ensure that no violations or damage occur during these activities. The Advisory Opinion then provided specific restrictions on the extent to which the “responsibility to ensure” must be carried out by the state and whether the state may be liable to pay losses due to damage caused by the activities.

Refleksi Kedaulatan Negara dalam Penegakan Hukum Sumber Daya Alam Hayati di Zona Ekonomi Eksklusif

The international law regime on EEZ has been developed by the international community through the United Nations Conference on and state practices. This regime is intended to protect the interests of coastal states from the danger of being depleted of biological natural resources by fishing activities based on the free sea regime. In addition, the EEZ is also intended to protect the interests of the coastal state in the field of marine environment conservation as well as marine scientific research in order to support the use of natural resources in the zone. UNCLOS gives sovereign rights to Indonesia as a coastal state to explore and exploit natural resources in the EEZ as well as jurisdictions relating to the exercise of these sovereign rights. For that reason needs integrated law enforcement an effort to conserve living natural resources in ZEE Indonesia. By using the normative legal writing method, this study describes how the concept of law enforcement of living natural resources in Indonesia's EEZ based on various laws and regulations.

Environmental Interests in Investment Arbitration: Challenges and Directions and Water Services Disputes in International Arbitration: Reconsidering the Nexus of Investment Protection, Environment, and Human Rights

Investor–State dispute settlement (ISDS) has been the preferred dispute resolution venue for redressing foreign investors’ investment grievances. As a result of its standing in adjudicating investment disputes, investment arbitration tribunals (investment tribunals) have increasingly been tasked with, for example, adjudicating at the cross-hairs of international investment law (IIL) and environmental law.2 Thus, investment tribunals have indirectly been tasked with the great responsibility of regulating other regimes of international law—for example, international water services and international energy. As host States are increasingly becoming well aware of the immense global threat of climate change, more often than at any time before in history States pursue municipal efforts (or take a series of measures) to prevent, address, as well as redress, environmental harm. More often than ever before, host States are demanding that investments meet the goals of, inter alia, ‘sustainable development’. As a result, investment tribunals have been tasked with jurisdictional...

‘The Peking Formula’: International Law, the United Nations, and Chinese Sovereignty during the Korean War

The origins of China’s modern superpower ascendancy are most frequently located in the 1970s, the decade during which the People’s Republic of China (PRC) began to carry out transformative economic reforms and gained diplomatic recognition in the international system. Such narratives, however, sometimes mistake the PRC’s prior formal exclusion from international institutions for disengagement. In fact, the new Chinese state was, from its founding in 1949, actively involved in contesting and reshaping the postwar regimes of global governance and international law, even as it was kept conspicuously outside the organizations and agreements which constituted that order such as the United Nations and the Geneva Conventions. A series of US-PRC diplomatic and legal disputes in the first half of the 1950s concerning war crimes and the treatment of prisoners during the Korean War demonstrates that Chinese actors turned the PRC’s exclusion to their advantage by skillfully interweaving a novel theory of international law with the realities of power politics. When the Secretary-General of the United Nations traveled to Beijing in 1955 to negotiate the release of captured American airmen his Chinese interlocutors not only secured short-term political concessions, but asserted their government’s legitimacy and sovereignty in the international system, thus closing the door on more than a century of fractured or partial sovereignty in China.

Africa and investor-state dispute settlement: Mixed reactions, uncertainties and the way forward

ABSTRACT Investor-state dispute settlement (ISDS) is a legal mechanism that allows foreign investors access to a supposedly neutral dispute resolution forum other than the court system of the host country in which the dispute arose. Globally, ISDS resolution mechanisms are currently confronted with unprecedented levels of scrutiny, and the system’s legitimacy is being questioned by both developed and developing countries alike. In Africa, criticisms of ISDS and the actual benefits of investment agreements for developing country host nations have informed recent collective efforts to shape dispute resolution mechanisms provided for in continental, regional and bilateral investment agreements. In light of these developments, this paper examines the contemporary international law regime in Africa and the ISDS mechanisms that are put in place by such an investment framework from the global, continental, regional and bilateral perspectives. It argues that African countries should not abandon ISDS, and provides recommendations on the way forward.

The Impact of the EU’s Return Acquis on the International Law Regimes. Governing the ‘Expulsion of Aliens’ – Universal and Regional Developments

The Impact of the EU’s Return Acquis on the International Law Regimes. Governing the ‘Expulsion of Aliens’ – Universal and Regional Developments

SDG 12: Ensure Sustainable Consumption and Production Patterns

SDG 12 operates in a context shaped by contrasts between thriving consumers and exploited workers, and rampant unsustainable practices. This contribution critically discusses the areas of international law that are relevant for SDG 12, with special attention for the international trade and investment regimes. It argues that the environmental and human rights agreements currently in force are much weaker when compared to the powerful regimes of international economic law, whose main preoccupation is the liberalisation of trade and investment, and not material footprints and the redistributive consequences of sustainable production and consumption. SDG 12’s focus on voluntarism, and omission of key human rights instruments, can hardly affect this imbalance. It rather reproduces the structural conditions that have generated enormous social and environmental damages.

More Attention to Policies! Improving the Distribution of FDI Benefits: The Need for Policy-Oriented Research, Advice and Advocacy

This article explores different ways in which governments can increase the benefits of FDI and manage the relationship between governments and international investors in a mutually beneficial manner. It focusses on three concrete policy fields in which discussions are afoot that bear on this issue, and where opportunities to exercise influence exist: encouraging more sustainable FDI; enhancing the distribution of benefits associated with FDI; and anchoring sustainable FDI, corporate social responsibility and responsible business conduct in the international investment law and policy regime and, specifically, in the context of the negotiations of an Investment Facilitation Framework for Development at the WTO. These are examples of policy areas that warrant attention, with a view toward scholars seeking to influence the way in which they are tackled, through applied multidisciplinary policy-oriented research, concrete recommendations and targeted advocacy.

T-TIP Negotiations Round Two: An Opportunity to Redirect the Trajectory of International Investment Law

Over 2,5000 international investment agreements govern trillions of dollars in foreign direct investment that crisscrosses the globe. Nonetheless, the international investment law regime formed by those agreements faces a legitimacy crisis. Critics argue that international investment treaties’ dispute-resolution mechanisms favor foreign investors and that their substantive obligations undermine countries’ sovereignty. As the world’s largest exporters and recipients of foreign direct investment, the European Union and United States hold the keys to reform. Until now, however, they have differed on solutions. A well-designed investment chapter in a free trade agreement between the European Union and United States could simultaneously resolve those differences and redirect the trajectory of international investment law.

The Role of Proportionality in International Investment Law and Arbitration: A System-Specific Perspective

Abstract In this article, we examine the place of proportionality and related tests in international investment law and arbitration by looking specifically at the challenges faced by this field on applying proportionality coherently and consistently. We also assess where proportionality has been used in international investment law and arbitration. We argue that a sound appreciation of proportionality in international investment law requires taking into account the inherently imbalanced conception of international investment agreements, the incoherence of the international investment law regime, and the ad hoc dispute settlement method tasked with applying and interpreting a variety of imprecise and diverging norms. Therefore, international investment law and arbitration have not developed an institutionalised approach towards proportionality. Since investment agreements and international investment arbitration form a rather incoherent collective of cases and, as a result, have not developed a single or uniform approach towards proportionality, there is a tendency to individually approach cases.

COVID-19 Pandemic, Long-Term Incentives for Developing Vaccines and Infectious Disease Market: IP Law under Stress

Continents are facing an apocalyptic pandemic that pose a mortal danger to millions of its citizens. This paper seeks to address the role of intellectual property law in addressing the problem of COVID-19 pandemic. We suggest that current international IP law regime and TRIPS Agreement do not pose an insurmountable impediment to access to the successful COVID-19 vaccine. Publicly advocated fundamental reform or even the abolishment of the current IP law regime under severe information asymmetries might be counterproductive and distortive. Governments can via existing compulsory licensing, advance purchase agreements and employment of patent-pools, research subsidies, reward mechanisms and reputational sanctions take necessary steps to effectively overcome any IP barriers in ensuring access to crucial medicines/vaccines especially during a COVID-19 pandemic. Moreover, the current rate of medical research on COVID-19 suggests that previous vaccine R&D “failures” were driven by rather limited demand for such vaccines and where not the problem of inadequate IP-incentive stream. Furthermore, paper suggest that the current EU competition law rules on the horizontal exchange of information might be perceived as an impediment to innovate and might be temporary suspended. In addition, paper offers several substantive insights on an improved IP related public policy respond in the war against COVID-19.

The inter-relationship between no harm, equitable and reasonable utilisation and cooperation under international water law

The chapter addresses the no-harm principle as a core pillar of the international water law regime, and its inter-relationship with the principles of equitable and reasonable utilisation and cooperation. No harm will be described in its harmonised relation to the latter two principles under the “community interest” approach to transboundary watercourses, as enunciated by the Permanent Court of International Justice and later corroborated by the International Court of Justice. Such a harmonised construction of the three-pronged body of international water law will be illustrated as one disproving any alleged priority or, conversely, subservience of either principle with respect to the others. It will also be shown how the same construction emphasises the integration and inter-relationship between the legal principles at hand.

APPLYING THE NEW LEX MERCATORIA BY OPTING-OUT APPROACH IN SETTLEMENT OF INTERNATIONAL COMMERCIAL CONTRACT DISPUTES

The problem that must be solved at first in international commercial contract dispute settlement is the determination of applicable law. This problem is not easy to be solved in the absence of a choice of law clause. Generally, judges or arbitrators attempt to use conventional methods of determination that ultimately designate national law from either party. This conventional method certainly creates a sense of injustice for one of the parties whose national law is not embarrassed. From the condition above, the existence of an international law regime (the New Lex Mercatoria made by International Organizations operating in the field of International Commercial Law) as well as an approach that enforces the law regime is urgently needed in international trade traffic. The purpose of this study was to determine the importance of using an opting-out approach to enforce the New Lex Mercatoria in the resolution of commercial disputes encountered. The research method used is normative legal research method with the statute and conceptual approach. The results show that the "opting-out" approach further expands the potential of the New Lex Mercatoria in the settlement of international commercial contract disputes that ultimately leads to the harmonization of international commercial law.

THE SOUTH CHINA SEA ARBITRATION CASE AND THE CONSEQUENCES FOR THE LEGAL REGIME OF ISLANDS IN INTERNATIONAL LAW REGARDING UNCLOS ARTICLE 121.3

This paper aims to determine whether there is uniformity in the interpretation of the UNCLOS Article 121.3 and whether the Arbitral Award can be considered as a threat to it. The historical context and the ambitions of the involved parties are presented and analyzed. In addition, an analysis of the treatment of the island regime in international case law is carried out, as well as an analysis of the Tribunal’s interpretation of Article 121.3. The main finding is that there is no contestation regarding the uniformity its case law interpretation; but a necessary complement given the ambiguity of Article 121.3.

Typology of Interaction between the International Financial Law and the EU Law

INTRODUCTION. Interaction between different legal systems is a substantial challenge for the international law science. Such an interaction becomes even more specific in integration states’ associations which peculiarity is direct effect of the legal acts of such associations with regard to individuals. The article examines various approaches to the interaction between international financial law as a brunch of international law and the EU law. Author outlines different types of the interaction.MATERIALS AND METHODS. Author researched different types of the interaction on the basis of legal empirical materials in the sphere of finance including international agreements, court decisions, recommendations and working documents. Th methodological basis of the research contains general scientific and special methods including logical, historical, analytical comparative and prognostic methods.RESEARCH RESULTS. Interaction typology can be made on the basis of various criteria. International financial law and the EU law use a model of interaction between general and special regime of international law as well as a model of implementation of international law in a domestic legal system. The first model has been applied in two cases. When the European Economic Community was established and when mew Members entered in it (genesis interaction) as well as when Member state left the EU (terminal interaction). In the course of current functioning of the EU gives the priority to the second model. The latter contains two methods of interaction: incorporation and reference. Incorporation of soft law rules has specific features since it may be realized not only via legal instruments but also via recommendations of the EU institutes and bodies.DISCUSSION AND CONCLUSIONS. Basing on the analysis of rule-making and application of law in the EU finance sphere author argues the distinction between monism and dualism is performed using the criterion of the self-execution of international agreements. Interaction of international financial law and the EU law is pursuing on the level of principles and global ideas and values of contemporary world. These principle and values may be declared in the framework of international fora and organizations. Interaction is pursuing on the level ‘general international law and the EU law as a whole’ as well as on the level ‘international financial law and the EU financial law’.

Human right to water under international law regime: an overview

The worldwide water crisis is alarming in recent years due to climate change, a growing world population and increasing demands for water, making the situation challenging. A large number of countries are facing a difficult situation where water supplies are not adequate to satisfy even the minimum needs of the people. While international regulation of water has traditionally operated from the perspective of the state, recent human rights instruments have shifted the debate. Despite the lack of a universal treaty containing an explicit human right to water, the UN General Assembly has adopted resolutions expressly recognizing the human right to water, and the right is furthermore incorporated in the new Sustainable Development Goals. In this context, the aim of this paper is to examine the present status of the right to water in international law. It attempts to dialogue with the different existing perspectives regarding the impact of its international recognition as a human right. It then explains the development of the right to water in legal and judicial spheres. Finally, it considers the urgency and challenge of monitoring the human right to water and sanitation and discusses important implications for public policies.

The Legacy of the SADC Tribunal in International Investment Law

The now defunct Tribunal of the Southern African Development Community (SADC) was called upon a few times to decide cases related to the protection of (foreign) property rights during its short lifespan of less than five years. The most controversial of these cases was Mike Campbell (Pvt) Limited and others versus the Republic of Zimbabwe (the Campbell case), which led to the eventual suspension of the Tribunal. At the heart of the case was the legality of a postcolonial land reform program and the classic tension in international investment law between the promotion of public interest and the protection of individual property rights. The Tribunal stirred controversy by condemning the land reform program without due regard to its underlying public policy rationale. Much of the scholarly writing on the Campbell saga has focused on Zimbabwe’s hostile reaction and the impact of the Tribunal’s demise on the protection of human rights in the region. Relatively little attention has been given to its implications for the SADC investment protection regime. This chapter sets out to examine the investment jurisprudence and legacy of the Tribunal focusing on the Campbell decision. This landmark decision is largely similar to the decisions of the two arbitral tribunals established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) to try essentially the same subject matter. All three tribunals ruled against Zimbabwe’s expropriation of white-owned commercial farms using different legal bases. While the SADC Tribunal drew upon international human rights treaties and instruments, the ICSID tribunals relied on Bilateral Investment Treaties (BITs). The divergent legal bases provide an interesting context for reflection on the convergence of international human rights and investment law on the protection of property rights. The interplay between these two international law regimes has received increasing attention in academic literature over the last few years. This chapter contributes to this emerging literature by analysing the investment case law of a de facto human rights court.

Reduce, Reuse and Recycle: An Environmental Law Approach to Long-term Sustainability of Outer Space

The article conceptualizes the existing international environmental law principles to better understand their applicability to outer space. The article proposes utilizing existing international environmental legal principles to implement the idea of waste hierarchy concept of ‘Reduce, Reuse and Recycle’ to address issues concerning long-term sustainability of outer space. The primary focus is on issues pertaining to transfer of ownership, on-obit servicing, and active debris removal and how they can be used to achieve the sustainable development goals of outer space through the waste hierarchy concept. The article ultimately suggests that existing international environmental law and space law together can ensure an efficient framework to help cope with issues threatening the sustainable use of outer space. The article works towards understanding the importance of bridging the gaps in the existing international space law regime with respect to long-term sustainability of outer space. Space Sustainability, Environmental Law, Transfer of Ownership, On-Orbit Servicing, Active Debris Removal