International Rule-making Research Articles

De-risking regional geopolitics

Abstract This note describes the restraint which will be needed for China and the US to embrace and sustain the kind of détente which dramatically thawed relations between the US and Soviet Union. For the United States, the restraint that is needed is to step back from demanding recognition of its continued primacy; Washington should recognize that China is no longer prepared to be just a rule-taker, but is determined to be a major player in international rule-making. For China restraint is necessary partly because its recently reasserted territorial claims over the South China Sea are indefensible in international law, and also because it has recently played a much more active spoiling role on human rights issues than it did in the past. Australia, and other countries in the Asia-Pacific region, have an important role to play in encouraging the US and China to do what is needed.

Potential and perils: paths to protecting lunar sites of extraordinary scientific importance (SESIs) for astronomy before it is too late.

The Moon presents unique opportunities for high-impact astronomy that could enhance our understanding of our solar system, the possibility of life beyond Earth, and the evolution of the universe. A handful of locations on the lunar surface are 'sites of extraordinary scientific importance' (SESIs) for such studies, presenting opportunities for astronomical research unmatched anywhere else. For instance, the farside of the Moon, the most radio-quiet location in the inner solar system, could allow for the emplacement of telescopes to study the cosmic Dark Ages in ways that are impossible elsewhere. However, we are also on the cusp of a broader lunar renaissance. A flurry of upcoming missions, both scientific and non-scientific, will target some of these very same sites and threatens to degrade their value to science. Protecting these sites is an urgent matter. Two major international efforts to create rules for activities on the Moon are afoot, but so far neither emphasizes protecting SESIs. To safeguard the exceptional scientific opportunities on the Moon, astronomers should engage these international rulemaking efforts and steer them towards ensuring the preservation of SESIs for research and discovery. We propose elements of a programme of action to adopt during a crucial, but closing, window. This article is part of a discussion meeting issue 'Astronomy from the Moon: the next decades (part 2)'.

Comparing the power resources critical to international rulemaking in outer space: China and the United States

The rapid growth of China’s national resources in the space domain may change the gap in power between China and the United States in relevant international rulemaking. This article proposes an analytical framework for identifying, comparing, and analyzing states’ power resources critical to international rulemaking and uses the framework to compare the relevant resources between China and the United States in the space domain. First, this paper develops a method for identifying resources crucial to international rulemaking in outer space. The relevant resources of the two countries are then compared in this article. Finally, the article explores comparative advantages, consensus, differences, and cooperation possibilities of the two countries in specific international space rules. The framework could be adapted to compare diverse nations’ resources critical to international rulemaking in other fields; it contributes to research on space law, international legislation, and national power.

COVID-19 POPULISM CHALLENGES AND CHINA’S FINANCIAL LAW RESPONSES: THREE EMERGING CASE SCENARIOS

China’s increasing engagement in international governance has had significant ramifications in international rule-making and institutional build-up. The post-COVID-19 era has seen a rise of populism in China, as well as an elevation of China’s significance in international governance. This article offers a new perspective on China’s growing influence in the midst of resurgent populism, by focusing on three case scenarios: defending state liability in public health crisis lawsuits, championing financial multilateralism, and an emerging digital currency landscape. The argument made here is that China’s status as a rising power has led it to advocate for international rules, standards, and institutions in a de-Americanised and anti-populist manner.

A SWOT Analysis of China’s Bid to Join the CPTPP

This study aims to discuss the opportunities and challenges of China’s bid to join the CPTPP through a SWOT analysis. Due to the continuous reforms and active participation in international rulemaking, China is getting closer to reaching the CPTPP standards. But to gain the membership of the CPTPP, there are still some impediments to overcome: get the consent of all CPTPP members and meet the high standards, especially those related to cross-border data flows, labor protection, and restrictions on state-owned companies.

Technique and practice of international rule-making: review of the materials of the ESIL International conference

The article presents the main trends in rule-making practice in the field of international law, which were summarized on the basis of expert reports and abstracts at the Conference of the European Society of International Law (ESIL) in autumn of 2021. The authors of the article are ESIL members and have previously made reports at its forums. In this review, they analyzed the materials of thematic seminars of “working groups”, “agoras” and “forums” of the Conference. The debates touched upon the impact of the digital revolution on the form and content of international lawmaking, discussed the influx of informal norms and standards in this area, maintaining the integrity of national systems and rationality of “soft law”, spread of the so-called “expert codifications”, ensuring the harmonization of domestic legality and lawmaking of non-state actors, taking into account corporate and civil-public interests in the law-making process, international negotiations and practice of states, demand for interdisciplinary paradigms, approaches and methods in situations of collisions of legal regimes and formation of “living law”. The authors of the review conclude that modern international law is under-going significant “digital recalibration” and is developing on the basis of new technologies from hyperformalism to hyperfactualism.

Vector of development of international legal regulation in the sphere of public-private partnership

The subject of this research is the prospects for the development of international legal regulation of public-private partnership. The question is raised on the diminishing role of the state in regulation of international and transboundary relations in the sphere of public-private partnership. The author indicates a quite noticeable replacement of traditional regulatory processes, the key role in which is played by the states, with informal processes of international rule-making, in which the lead is taken by non-state actors. It is substantiated that the absence of international convention on public-private partnership negatively affects the regulation of relations in the sphere of public-private partnership. Leaning on the domestic and foreign scientific literature, the author outlines the vector of development of international law in the sphere of public-private partnership, as well as substantiates the need for adopting the international framework convention on public-private partnership. Analysis is conducted on the special forms of interaction between international law and national law in the sphere of public-private partnership, as well as on correlation between international law and non-legal regulators of public-private partnership. The article describes the key aspects of the content of the international framework convention on public-private partnership. The novelty of consists in establishment of the vector of development of international legal regulation of public-private partnership. Based on the “clash” of private law and public law approaches towards regulation of international investment relations, the author substantiates the comprehensive approach towards regulation of public-private partnership.

Between Participation and Capture in International Rule-Making: The WHO Framework of Engagement with Non-State Actors

Abstract There has been a tremendous rise in the participation of non-state actors – notably business – in international rule-making. While such participation has many benefits, the risk that rule-making gets captured – that is, that rules are made in line with business’ profit-driven interest rather than in the public interest – has increased too. This article, first, explores the growing problem of capture in international rule-making and identifies three modes of capture that have become particularly prevalent in international policy-making: information capture, representational capture and resource capture. The article then explores the World Health Organization’s (WHO) 2016 Framework of Engagement with Non-State Actors (FENSA) and how effectively it manages these risks. FENSA is interesting because it is the first policy by an international organization seeking to comprehensively and systematically regulate non-state actor engagement and to prevent related risks. In assessing FENSA, the article focuses on the WHO’s engagement of two main actors: the Big Food industry and voluntary donors. Finally, the article seeks to draw more general lessons as to the capacity of FENSA-like reforms to prevent capture in international rule-making.

On the concept of international standards of public-private partnership

The scope of international legal regulation of public-private partnership (PPP) is being expanded due to the extended range of intergovernmental relations and relations involving international organizations of public-private partnership, as well as extension of the scope of international law to cross-border relations regarding PPP. A relatively small number of international conventional rules and legal norms that regulate the relations in the sphere of public-private partnership have not yet been codified in the form of a multilateral international treaty. Gaps in the international legal regulation activate non-formal processes of managing international and cross-border relations in the sphere of public-private partnership with prevalence of the international intergovernmental organizations. The scientific novelty lies in articulation of the problem of formulation and application of the international standards of public-private partnership as the results of such non-formal processes of international rulemaking of international organizations. Using the formal legal and comparative legal methods, generalization and abstraction, the author formulates the definition of international standards of public-private partnership, discloses their content and difference from the international standards in other spheres of international relations, assesses their legal nature, problems and prospects of their formation. It is substantiated that the development of international standards of public-private partnership would be facilitated by establishment of their adoption procedure in the conditions of cooperation of all international organizations that perform a regulatory function in the sphere of public-private partnership.

China’s Policy and Rule-Making Activities on Outer Space: The Case of Preventing Arms Race from the Global Commons Perspective

Abstract As China is rising as a space power, it intends to be more active in participating international rule-making activities. International legal rules are needed for the purpose of preserving peaceful order, which is the minimum condition of the outer space as a global common. Under the Conference of Disarmament, China, together with Russian Federation, advanced a draft treaty on the issue of prevention of arms race in outer space. For raising consents among states in the process of international rule-making, China’s policy and rule-making activities have to supply clear solutions to the divergent core issues including arms race, space weapons, use of force and threat of force in outer space, etc. Furthermore, as trust and confidence are imperative to any meaningful norm-setting agenda in international community, China can significantly improve the endeavour in international rule-making through strengthening its credibility.

Between Participation and Capture in International Rule-Making: The WHO Framework of Engagement with Non-State Actors

Following demands for more democratic legitimacy and given the growing dependency of international organizations (IOs) on external information and resources, in the past decade and a half, IOs have opened up their rule-making to non-state actor (NSA) participation. In a broad sense, this participation trend tracks the 20th-century administrative law revolution in many democracies, whereby an expanding and more powerful administrative state engendered greater demands for transparency and citizen participation in rule-making. Such opening-up would indeed appear to improve the democratic responsiveness of IOs, yet what the literature has largely ignored so far is that it also increases the risk that rule-making becomes captured by the interests of narrow groups. Three main types of capture risks have become particularly prevalent in international rule-making: capture caused by the dependency of IOs on the information held by business entities, capture caused by the over-representation of business entities, and capture caused by the financial contributions of NSAs to IOs. The recent Boeing 737 Max scandal highlights the potentially tragic consequences of capture. In 2016, the WHO became one of the first IOs to adopt a comprehensive policy for encouraging NSA engagement while simultaneously mitigating the accompanying risks—the Framework of Engagement with Non-State Actors (FENSA). In this article, I explore how and whether FENSA prevents capture risks — on paper and in practice. Further, NSA engagement is a central feature of the 2030 Agenda for Sustainable Development and of the 2016 Sustainable Development Goals (SDGs), and many IOs are adapting their strategic approaches and work plans towards more NSA engagement. In the process, the IOs are considering ways to develop or revise outdated policies to address the risks of engagement, and they will likely look to FENSA for inspiration. FENSA thus also serves as a case from which I seek to draw more general lessons as to the capability of such engagement reforms to prevent capture in international rule-making.

The African Continental Free Trade Area: Toward a New Legal Model for Trade and Development

International trade law is at a turning point, and the rules as we know them are being broken, rewritten, and reshaped at all levels. At the same time that institutions like the World Trade Organization (WTO) face significant change and a global pandemic challenges the rules of the market, Africa’s new mega-regional trade agreement, the African Continental Free Trade Area (AfCFTA), is emerging as a promising framework for redesigning international economic law. As this Article will argue, the AfCFTA presents a new normative approach to trade and development that is positioned to rewrite the rules in a more inclusive and equitable way and, over time, possibly affect global trade well beyond the African continent. Historically, trade and development have been linked through the framework of Special and Differential Treatment (S&D), which has been a central feature of the WTO and is increasingly shaping regional trade agreements (RTAs) as well. Although the connection between trade and development is more important than ever before, traditional S&D is not positioned to deliver on broader priorities of social and economic development in the current international climate. Fortunately, as this Article will argue, Africa’s approach under the new AfCFTA sets the stage for a needed refresh of S&D. While the AfCFTA incorporates traditional aspects of S&D, it also includes elements of a forward-looking, rules-based approach to further economic and social development, advancing the Sustainable Development Goals (SDGs). This new dimension of S&D holds great potential for promoting integration through trade, representing the needs of a diverse group of countries in the rulemaking process, and reshaping international economic law more broadly to generate positive development outcomes. This Article begins with an assessment of the AfCFTA as an alternative model for trade and development law, evaluating the agreement in the historical and evolving context of S&D and examining its role in shaping a new normative approach to S&D. The AfCFTA, we argue, represents a shift from using S&D as a largely defensive trade approach to one that positions S&D as an affirmative tool for achieving sustainable development through the design and implementation of the rules of trade themselves, while still maintaining flexibility for countries that need it. This new approach may finally replace the old trade paradigm of the ”haves and have nots” with a system in which trade rules can be designed to benefit all. Although the AfCFTA is still at an early stage and will have to overcome formidable challenges, this Article provides an initial assessment of the AfCFTA’s proactive new model in the context of the substantive areas of law identified as next-stage (Phase II) negotiating priorities: intellectual property rights (IPR), investment, and competition law. The Article’s comparative assessment draws upon the laws of African nations, African and international RTAs, and other proposals for international legal reform. Finally, the Article looks to the future, positing that the AfCFTA could be the best legal instrument available to break the stalemate in international rulemaking, design new trade law approaches to pressing issues like global health and food security, and close the loop between trade rules and development goals, including the seventeen SDGs. As the AfCFTA is rolled out and implemented, it could have a profound impact on trade and development law, reshaping the rules for Africa and perhaps the world as well.

Глобальное экологическое управление и многосторонняя экологическая дипломатия: состояние предметных областей

Governance is so commonly used in academic literature and policy papers in the field of international environmental politics and as such has overtaken the words “policy”, “diplomacy” and “cooperation”. This phenomenon has empirical support – environmental policy is one of the most internalized areas of regulation, and states were no longer the sole subject of international rulemaking. The current state of the art in studying global environmental politics is quite paradoxical. Notwithstanding the increased recognition of the importance of non-state, transnational actors and mechanisms to solve global environmental problems, little attention is been paid to the study of the relationship between interstate and non-state forms of interaction. That raises the question of how multilateral environmental diplomacy and global environmental governance are connected with each other in the academic peer-reviewed journals. What kind of international interactions do they study and what links them? To answer these questions, the peer-reviewed articles from SCOPUS and Web of Science databases on multilateral environmental diplomacy and global environmental governance analyzed through a systematic literature review. To understand the nature of the two approaches in studying global environmental politics, I summarize the differences and then identify the links between them. In each of the research areas, sub-directions and the related content were identified, while the typology of the articles allowed to identify the relationships between them. In each of the research areas, sub-directions and the related content were identified, while the typology of the articles helped to highlight the relationships between them. The main finding includes the confirmation that environmental diplomacy and environmental governance studying mostly in isolation from each other. The main finding includes the confirmation that environmental diplomacy and environmental governance studying mostly in isolation especially regarding the interplay between interstate or non-state forms of cooperation as well as assessments of their significance. Two dimensions of the politics – formal negotiations on collective actions and weakly institutionalized public space that involves various stakeholders, movements and initiatives – exists in parallel to each other. At the same time, the study demonstrated the need to develop more responsive notions of international environmental diplomacy, since it is no longer specific only to the study of negotiations and other forms of interstate interaction.

Social pressure and the making of wartime civilian protection rules

The protection of civilians from the dangers of warfare constitutes an imperative in contemporary global politics. Drawing on original multiarchival research, this article explains the codification of the core civilian protection rules within international humanitarian law in the 1970s. It argues that these crucial international rules resulted from the operation of two central mechanisms: Third World and Socialist-led social pressure and a strategic, face-saving reaction to it, leadership capture, in the politicized context of Cold War and decolonization-era international social competition. I demonstrate the conditional effect of social pressure by a coalition of materially weaker Third World and Socialist states upon powerful reluctant states: the United States, the United Kingdom, and more surprisingly, the Soviet Union. Third World and Socialist social pressure fostered a curious US-USSR backstage collaboration I label leadership capture, decisively shaping the legal compromise embodied in the civilian protection rules of Additional Protocol I to the Geneva Conventions. Theoretically, this article furthers burgeoning IR work on the connection between social pressure, status competition, and international rule-making. Empirically it presents a new archives-based history of an intrinsically important case in international law.

Reflection and operationalization of the common but differentiated responsibilities and respective capabilities principle in the transparency framework under the international climate change regime

“Common but differentiated responsibilities and respective capabilities” (CBDRRC) is the most significant guiding principle in the international climate change regime, created by the United Nations Framework Convention on Climate Change in 1992 and inherited by the Paris Agreement 24 years later. This paper examines the operationalization of the CBDRRC principle in one of the cornerstone rules of the regime—its transparency provisions, both in existing practice under the convention and possible evolvement in negotiations under the Paris Agreement, from the perspectives of both international rule-making and domestic implementation. The authors have found a continuous enhancement of the transparency framework since the 1990s, and gradual consolidation of a bifurcated system between developed and developing countries into a common one. The authors argue that the transparency framework, as part of the procedural rules, should be designed to facilitate transparent information sharing in accordance with substantive commitments under international climate change laws. Thus, it indirectly reflects historical responsibilities for climate change, while the framework should also be designed as feasible and reflective of the respective capabilities of nations. Finally, the evolution of the transparency framework will aim to enact common and enhanced provisions while differentiating between developed and developing countries in the near term, and greater transparency-related capacity-building for developing countries.

3D Wireless: The Promise and Challenges of Next-Generation Space and Airborne Wireless Systems Conference Report

As the number of airborne and space systems increases, their coordination becomes more challenging. This proliferation of wireless devices operating above the Earth may lead to several types of collisions. One potential risk is physical collisions. A second risk is the collision of signals within the receivers of the devices, known as interference. Finally, there may be collisions of regulations as operators work to comply with a range of national and international rulemaking bodies. To examine these issues, the Silicon Flatirons Center for Law, Technology, and Entrepreneurship held a conference titled 3D Wireless: The Promise and Challenges of Next-Generation Space and Airborne Wireless Systems with industry experts on October 4, 2017. Participants explored ways that airborne and space systems’ use of physical space and the radio spectrum could be improved to support innovation, while also protecting public safety and incumbent operators. They offered a series of recommendations to accomplish these goals, including: • Better coordinating satellites to prevent pollution of space by collision debris; • Reusing spectrum by having radio links look outside of the equatorial band to satellites with orbits that do not stay directly over the equator; • Using multi-stakeholder groups and risk-based interference assessments to address interference issues; • Allowing overlays, which permit new rights in the marketplace that are subordinate to existing transmission rights; • Encouraging projects like NASA’s Unmanned Aerial Systems Traffic Management, which would provide identification and tracking services for drones that are currently in the air; • Recognizing that drones are not fully autonomous today, and better educating operators of their responsibility to fly drones safely; and • Scaling production and pursuing vertical integration within companies to reduce per-unit costs. These steps, along with other suggestions detailed in this report, should aid in the process of bolstering innovation, while protecting public safety and incumbent operators in the airborne and space systems industry.

International Rule of Law and Rule of Law Construction in China

The rule of law has international as well as domestic attributes, so it can be divided into two levels: the domestic rule of law and the international rule of law. Using the thinking behind the international rule of law to build the rule of law in China is both necessary and inevitable. China should put into practice the idea of the international rule of law at the institutional and the governance levels, and should at the same time participate in the UN’s rule of law activities and in international rule-making, thereby extending its rule of law discourse power and influence in the international sphere.

Гуманитарная деятельность: новые аспекты нормативного закрепления

The article deals with problems of humanitarian activity. The authors carry out a comparative legal analysis of legal acts regulating humanitarian activity. The result of this study is quite meaningful disclosure of the concept of «humanitarian aid». The results of the study can be tested in the national and international rule-making and law enforcement.

Legal Aspects of Combating Extremism for the International Community of States

Background/Objectives: In the 21st century, the world was faced with increased outbreaks of extremism and terrorism, being completely unprepared neither in terms of the practical combating these phenomena, nor in terms of their theoretical conceptualization. Methods: This article attempts to analyze comprehensively the extremism phenomenon in order to clarify the reasons of specific international focus on this phenomenon and the prospects of international rule-making in this area based on the analysis of the existing international legal acts and documents adopted by various international forums with the participation of the UN member states, and using doctrinal approaches. The study includes a broad legal framework and analysis of foreign policy initiatives in this regard. Findings: The analysis has shown that the above documents are increasingly dealing with the problem of combating extremism in the context of anti-terrorism efforts. Recently, the counter-extremism problem has been treated as a separate challenge to the international safety. The above documents are increasingly dealing with the problem of combating extremism in the context of anti-terrorism efforts. Recently, the counter-extremism problem has been treated as a separate challenge to the international safety. Moreover, the phenomenon of extremism takes various forms, primarily, the form of 'violent extremism'. Extremism is a complex and multidimensional phenomenon affecting the legal, social, political and economic elements. The uniqueness of the article is increased due to the lack of a comprehensive analysis of the 'extremism' phenomenon as a threat to the international peace and security. In this connection, it is reasonable to unify and harmonize approaches to combating extremism. Application/Improvements: International counter-extremism cooperation and multidisciplinary studies of this phenomenon are associated with the prospects of scientific development of the 'extremism' concept and determination of its qualifying features for the entire international community to be universally accepted.

Hesitant Embrace: China’s Recent Approach to International Investment Rule-Making

China is becoming one of the key stakeholders in the international investment regime. It is, however, still unclear what role China can play in the ongoing reform of the international investment regime. Starting from this overall focus, this article analyses the most recent period of China’s international investment policy-making. Mapping the contents of investment treaties signed since 2008 it argues that China undertook a partial ‘NAFTA-ization’. Whilst China has adopted a number of clauses invented by the NAFTA countries, it introduced these clauses in an incoherent fashion. Looking at the drivers of this peculiar policy, this article argues that China’s investment treaty-making practice is largely inspired by its partner countries. As a result of this particular negotiation policy, Beijing’s approach to international investment rule-making is inconsistent. This belies the argument that China can make a significant contribution to reforming the international investment regime.