International Treaty Law Research Articles

Law of International Treaties

Vladimír Týč: Právo mezinárodních smluv. Vydavatelství Masarykovy univerzity v Brně pro Právnickou fakultu MU, 1995, 116 stran.

PENGUNDURAN DIRI RUSIA DARI ICC : TELAAH BERDASARKAN ASAS GOOD FAITH DALAM HUKUM PERJANJIAN INTERNASIONAL

This study aims to examine the validity of Russia's withdrawal from the International Criminal Court (ICC) in light of the principle of good faith as established in the Vienna Convention on the Law of Treaties (VCLT). The primary objectives of the research are, firstly, to elucidate the legal implications of the principle of good faith within the 1969 VCLT. Second, to apply this principle to evaluate Russia's withdrawal from the ICC in 2016. To address the legal questions raised by this research, both the statutory and conceptual approaches have been employed. The statutory approach refers to the 1969 VCLT as the source of statutory law, while the conceptual approach draws on the opinions of scholars regarding the application of the principle of good faith in international treaty law. The findings of this research indicate that Russia's withdrawal from the ICC is not legitimate, as it demonstrates Russia's intention to avoid the application of the ICC's provisions. This withdrawal constitutes an act of bad faith, as it deliberately circumvents the unfavorable provisions of the agreement that apply to Russia following its occupation of Crimean territory.

Neutralising the ECT Sunset Clause Inter Se

Abstract Following a wave of announcements from major EU Member States withdrawing or considering withdrawing from the Energy Charter Treaty (ECT), the European Commission decided to recommend a coordinated withdrawal of the EU and its Member States from the ECT. The European Commission also backs the adoption of a ‘subsequent agreement on the interpretation of the ECT’ between the EU and its Member States that would ‘clarify’ that the ECT and its sunset clause do not apply intra-EU. The sunset clause contained in Article 47(3) of the ECT has been described as a major hurdle in States’ attempt to exit the ECT. However, under an international treaty law analysis, strong arguments confirm the availability of an agreement between a subset of ECT Contracting Parties that would exclude the application of the ECT and its sunset clause in their relations inter se—including the envisaged EU agreement—as a suitable and effective alternative to modernisation of the ECT. Not only does this appear as the most desirable outcome in view of the continuing protection of fossil fuels under the modernised ECT, but such an agreement would also be firmly grounded in public international law.

Armed Conflict-induced Displacement and Human Trafficking in the Sahel: Organised crime, vulnerabilities, and the accountability of non-state armed groups

Although organised criminal networks and non-state armed groups (NSAGs) have historically exploited conflict situations to commit various crimes, the extent of human trafficking by these entities in the Sahel has barely been interrogated in academic literature. In principle, while states have an obligation to criminalise trafficking in persons, problems arise where the state has lost parts of its territory to NSAGs or is facing ongoing conflicts with such groups. Boko Haram, for instance, controlled a large swath of territory in Northeast Nigeria from 2009 to 2015, with evidence of human trafficking. Therefore, this paper examines two specific aspects of human trafficking in the Sahel conflicts: trafficking by organised criminals and trafficking by NSAGs, especially terrorist organisations. It argues that while domestic laws may be useful in combating trafficking linked to organised criminal networks, the traditional state-centric approach to human rights protection makes human trafficking governance more complicated where NSAGs are involved, especially where they exercise territorial control. The paper unpacks these complexities and highlights the deficits in existing international law treaties. It argues that customary international law could provide a solution to the anti-trafficking governance challenge in the Sahel and makes a case for the adoption of an anti-trafficking Deed of Commitment within the Geneva Call mechanism.

Legal regulation of obligations in international agreements

The law of international treaties is one of the key branches of international law. It is international agreements, as a source of international law, that govern states, since the contractual regulation of international activity is able to ensure civilized interstate cooperation, such as: trade, investment, create appropriate conditions for the development of the economies of the contracting parties, and guarantee security processes in the country. The obligations of states assumed during the conclusion of international agreements, their proper formulation, agreement and compliance are the primary basis of quality international relations. Accordingly, this paper is devoted to the analysis of the normatively determined characteristics of an international agreement and the presence of obligations in them, methods of revival of obligations in the agreement, comparison of agreements with different subjects and obligations in them. Emphasis is made separately on the existing problems of the implementation of current international agreements. The study shows that security agreements usually contain negative obligations, while trade agreements include both positive and negative types of obligations. The above demonstrates that an international agreement is an expression of the will of the parties, their intentions, and also demonstrates the nature of the relationship dictated by the subject of the agreement. Thus, security agreements provide for compliance with the principle of non-interference and refraining from actions that could harm another country. Instead, trade agreements aim at active cooperation between states, which emphasizes the need for positive commitments by countries. The issues of appropriateness of the formation of obligations are equally important, both in international private and in international public law. However, researchers, unfortunately, pay little attention to the specifics of states’ obligations. It is the latter that are important, complex and lengthy to negotiate and affect a wide range of individuals. Undoubtedly, they differ significantly among themselves in the specifics of multilateral international agreements, which provide for accession itself, and not participation in the formation of the texts of agreements. All of the above emphasizes the complexity and multifacetedness of the researched issue. Accordingly, as modern international agreement law develops, it needs new views, the proper formulation of obligations in agreements, and guarantees of the latter’s fulfillment.

Learning from failure in ‘an Integral Part’ of EU Law: interpretation of international treaties in the CJEU

AbstractThe Court of Justice of the European Union has been criticised increasingly for its approach to international law. While much literature focuses on reluctance to apply international law (ie refusing direct effect), this criticism also includes interpretation, arguably a more contentious area. The Court interprets international treaties through either the Vienna Convention or its own teleological method, with the latter increasingly applied. The legitimacy of applying localised methods of interpretation to international treaty law is debated in scholarship. Whether the Court’s case law applying international law is Völkerrechtsfreundlichkeit (friendliness to international law) is the focus of most contributions in this area. This Article seeks to move beyond that debate by demonstrating the Court should in all instances seek to achieve the legal imperatives of certainty and justice. It is explained that justice divides into ‘thin’ and ‘thick’ forms. Whilst ‘thin’ justice is widely accepted and amounts to treating like cases alike, substantive (‘thick’ justice) outcomes are inherently debatable. The Article proves the Court is failing to clearly distinguish cases (‘thin’ justice) and that case law is uncertain. There are also significant questions concerning ‘thick’ justice. The Court has been subject to criticism for substantive outcomes in this area, with the Commission and Council even seeking to limit its role. With case law that is uncertain and appears unjust it is argued that there is failure in this ‘integral part of EU law.’ The Court is now under increased pressure, and it is uncertain how it will respond. There are certainly cautionary lessons to be learned concerning the importance of paying proper attention to justice and certainty for EU law as a whole, and beyond.

Doctrinal Approaches to the Problem of the Influence of a Fundamental Change in Circumstances on the Operation of Treaties

The paper is devoted to the study of the views on the problem of the influence of a fundamental change in circumstances on the operation of treaties that existed in the science of international law before the adoption of the Vienna Convention on the Law of International Treaties of 1969. The author analyzes the following approaches, common in international legal science, to the problem of applying the rebus sic stantibus clause in interstate contractual practice: its unconditional support; her denial; recognition of the admissibility of using a clause in the presence of a number of conditions.Based on the study of special scientific literature, conclusions are drawn regarding the validity and acceptability of each of the approaches, which to a certain extent contributes to a proper understanding of the true meaning of the current conventional norm on the impact of a fundamental change in circumstances on international treaties. An analysis of the first approach, which assumes the right of any of the states party to the treaty to refuse to implement it in the event of such a change in circumstances that seriously affects the fundamental rights of this state, leads to the conclusion that in the absence of clear criteria for the use of a clause, it is almost impossible to reliably answer the question of whether after a change in circumstances, the implementation of the contract will threaten the fundamental rights of the state. The denial of the rebus sic stantibus clause was argued either by challenging its legal essence or by stating its inconsistency with the principle of pacta sunt servanda. The third approach, which is the most realistic, won approval at the UN Vienna Conference on the Law of Treaties and was normatively enshrined in the Vienna Convention of 1969, which ultimately made it possible to remove uncertainty regarding the impact of a fundamental change in circumstances on the operation of international treaties.

"Municipal values": to determine the parameteral signs of phenomenology

The article examines the topical issues of defining the parametric features of the phenomenology of "municipal values”. The authors, on the basis of research and analysis of the historical retrospective of the origin and functioning of city self-government, determine the main stages of the appearance, formation and functioning of municipal values. The study of the phenomenology of municipal legal values is accompanied by the construction of a procedural chain "public values - constitutional values - municipal values”, in which the latter are considered as a natural manifestation and result of the activity of both public and constitutional values. A conclusion is made about the special role and significance of municipal legal values, which arose in historical retrospect, and were supplemented by the experience of the existence and functioning of city self-government, the achievements of which were interpreted at other levels of local self­government. This is evidenced by the borrowing by the national legislator of municipal legal values from the state legislation on local self-government and by the international legislator from the array of norms of international public law through the use of the mechanisms of international treaty law. It is also proven that modern international public law actually contains a paradigm that has developed due to the perception by the signatory states of relevant international treaties of the profile focus of international legal standards of local self­government. Its main subject, on the one hand, is the fundamental principles of local democracy, which have been generalized by the Western (European) experience of municipal activity and municipal construction, and on the other hand, they are nothing more than the values of municipalism, which must be borrowed by the post-Soviet states parties to such international agreements that after the collapse of the USSR acquired state sovereignty and entered the circle of independent member states of their European and international community.

JUDICIAL ACTIVISM AND METHODS OF INTERPRETATION

A distinct characteristic of the judicial activity of integration courts is that it is aimed not only at resolving legal conflicts, but also at interpreting the law in order to fill the existing gaps. Filling legal gaps may be described as a key function of an integration court. This special characteristic leads to the phenomenon of judicial activism. The study of the case law of integration courts reveals the possibility to formulate activist legal findings using different methods of interpretation. The possibility to use the teleological method of interpretation, which is the most suitable in order to eliminate legal gaps, stems directly from the provisions of the Vienna convention on the law of international treaties. The analysis of the acts of the Court of Justice of the European Union allows to establish a strong correlation between activist approaches and the use of the teleological method of interpretation. However teleological interpretation does not necessarily mean the choice of the most progressive available options. Often the activism manifests itself in the search of a balance between the interests of the integration organization and its Member States. The Court of the Eurasian Economic Union develops activist approaches by using both traditional methods of interpretation and teleological interpretation as well as having recourse to constitutional traditions of the Member States.

Indonesian-British Strategic Partnership in the Perspective of International Treaty Law

Indonesian-British Strategic Partnership in the Perspective of International Treaty Law

From Kuwait to Ukraine: Conflict’s Implications on the Natural Environment and the Responses of International Humanitarian Law

Summary The natural environment has long been the silent casualty of war according to the Guidelines on the Protection of the Natural Environment in Armed Conflict issued by the International Committee of the Red Cross (ICRC). As presented by the ICRC, International Humanitarian Law (IHL) does not reflect the reality of warfare today. Hence, this article builds on the ICRC recommendations with the aim of underlining changes that are essential for protecting the environment during war. Drawing on the experiences from the past and applying them to the current conflict in Ukraine, I propose four broader categories of change. First and foremost, the consensus within the international community is viewed as the basis for any further developments. Thus far politicization has prevented agreement, yet the events since February 24th, 2022, show that there are lessons to be learned. Compromise on the standards and implementation is thus called for, particularly when it comes to the conditions severe, long-term, and widespread damage. From this point of view, international condemnation of environmentally harmful practices in warfare is limited by the conditions’ disproportionately broad scope which arguably needs to be narrowed. Secondly, I suggest that mainstreaming environmental protection during armed conflict is of great importance. Such mainstreaming might be most relevant among military personnel during non-international armed conflicts because of the individualistic approach of national military manuals. Nonetheless, mainstreaming could prove appropriate in international armed conflicts as well, given the limited number of rules relating to the environment in international customary and treaty law. Thirdly, the interconnectedness between energy and environment, and the dangers associated with the destruction of energy infrastructure must be made very clear. Bombings or destabilization of nuclear power plants might be even more catastrophic than the burning and spills of oil wells. The last point of this brief is the need for greater accountability for environmental destruction incurred during armed conflict, especially from a systematic point of view. From this standpoint, the past events such as the establishment of the United Nations Compensation Committee for Kuwait, which inter alia addressed the environmental impacts of the conflict, or the ICC decision to focus more on environmental issues could provide inspiration in relation to Ukraine. Besides, the situation in Ukraine could become a potential landmark case. Consequently, the aim of the four propositions presented here is to define the most pressing limitations of IHL related to the natural environment, and to outline potential recommendations for policy makers who address the crisis in Ukraine as well as any further conflicts to come.

ANALYSIS OF THE EFFECTIVENESS OF THE LAW «ON INTERNATIONAL TREATIES OF THE REPUBLIC OF KAZAKHSTAN»

Recently, the interest of the scientific community in the problems of designing international treaties has increased significantly, which is explained by a number of reasons. Firstly, the limits of legal regulation of international relations are expanding and, accordingly, the requirements for the quality of treaty acts, the consistency and coherence of their legal structures are increasing. Secondly, in the context of the internationalization of law, there is a convergence of international and national legal systems, the assertion of the priority of universally recognized principles of international law over national legislation, which implies the unification of many institutions of law, including law-making mechanisms [1]. The Law of the Republic of Kazakhstan «On International Treaties of the Republic of Kazakhstan» (hereinafter referred to as the Law) determines the procedure for concluding, implementing, amending and terminating international treaties. International treaties of the Republic of Kazakhstan are concluded, implemented, amended and terminated in accordance with the Constitution of the Republic of Kazakhstan, generally recognized principles and norms of international law, the provisions of the international treaty itself, the Vienna Convention on the Law of International Treaties, this Law and other legislative acts of the Republic of Kazakhstan. The Address of the President of the Republic to the people of Kazakhstan «Strategy «Kazakhstan-2050»: New political course of an established state» sets specific tasks for a consistent and predictable foreign policy, which is based on strengthening regional and global security. Only a world based on international treaties, where the obligations stipulated in them must be strictly observed, can be safe. The authors analyzed the effectiveness of the Law «On International Treaties of the Republic of Kazakhstan» and proposed new solutions to this issue.

The Preponderance of International Courts in the Conflict of Treaty Law and Customary International Law

The foundations of a society's legal system are profoundly impacted by the law's historical context. International law is separate from the laws of particular countries. Legal determination in the community is more difficult than in a sovereign state because there is no worldwide legislature or system of courts with binding jurisdiction. Almost from the start, there were legal professors who believed that the Statutes were the ones responsible for establishing authority. This means that if a treaty establishes a norm that conflicts with an existing international custom, the rule in the treaty will take precedence. While some legal experts believe the Statute was created to establish a hierarchy, others argue that its only goal was to give a compilation of the international law sources in the order in which a court would properly analyze them. This study looks at how international courts tend to rule in situations where customary international law and treaty law are in direct opposition to one another.

On the issue of state participation in international contractual relations in the field of trade

The paper is devoted to the consideration of debatable aspects related to the regulation of modern trade agreements. The opinions of legal researchers and documents of international organizations are taken into account, where atypical positions regarding this group of treaties are highlighted. The author’s vision of the essence of such problems is outlined and his own position regarding them is argued. The UN Commission on International Law constantly examines problems related to international treaties. Thus, for many years there are the topical issues of: non-legally binding international agreements and the application of this form of transactions in the field of trade; providing legal force regardless of name; oral and written forms of agreements in the field of trade; the content of the concept of “regulation by international law”; the content of Article 2 of the Vienna Convention on the Law of International Treaties of 1969 is discussed, etc. Accordingly, the purpose of the paper is to highlight the debatable aspects typical for agreements in the field of trade, their specifics. During the writing of this work, a vector of future research on the outlined topic was set. The importance of defining and correlating trade agreements orally by parties between whom a trade agreement is already in effect. Summarizing the above, we note aspects that have been relevant for more than 50 years and require further research: the trade activity of the state is influenced by a much wider range of international treaties than those that directly regulate trade issues; for the binding nature of an international agreement, it is not the name that is important, but the compliance with the procedure for its conclusion and its entry into force; the form of the international agreement is secondary compared to the intentions of the parties, however, in trade agreements, such an intention is usually confirmed in writing; the meaning of the phrase “regulation by international law” to a certain extent contains the element of the states’ intention; enforcement of international treaties that do not have legal force requires doctrinal studies and further normalization.

The Legal Status of Regional International Organizations as Third Parties in Accordance with the Law of International Treaties

The article is devoted to the analysis of the principle of pacta tertiis nec nocent nec prosunt (treaties do not create either obligations or rights for third states without their consent) in the law of treaties with respect to regional international organizations. A retrospective analysis of the application of the pacta tertiis principle has shown that its normative formalization in codified acts of the law of international treaties does not fully allow using their regulatory properties in the context of the transformation of international legal order. In recent decades, there are some clear trends in the international legal landscape. They objectively reduce the full state-centricity of the world legal order which in turn suggests that it is incorrect to maintain a complete analogy in the legal status of states and international organizations as subjects of international law. The emerging expansion of the regulatory impact of international law, the completion of significant codification projects and the accumulation of decisions of international courts and tribunals raises the question of the need for a diversified approach to the application of provisions provided by the law of international treaties, depending on the subject of the relevant relations. The article outlines further prospects for the development of the pacta tertiis principle in relation to international treaties concluded by regional international organizations. According to the author, there is a high probability of further differentiation of the effects of international treaties among persons, depending on the subject composition of the relevant international legal relations. At the moment, the rules and procedures used in relation to states, as the main subjects of international law, are considered as universal legal solutions. The conducted research has shown that the chosen approach is not always able to provide appropriate legal impact in relation to other subjects of international law.

Facilitating access to credit and economic growth in Czechia, Hungary, Poland and Slovakia through international treaty law – The Mining, Agricultural and Construction Protocol to the Cape Town Convention

Facilitating access to credit and economic growth in Czechia, Hungary, Poland and Slovakia through international treaty law – The Mining, Agricultural and Construction Protocol to the Cape Town Convention

Landesbericht Österreich: Unmittelbare Anwendbarkeit von völkerrechtlichen Verträgen und Völkergewohnheitsrecht

This article examines the question to what extent the provisions of the Austrian Federal Constitution on the direct applicability of international treaties on the one hand and customary international law on the other can be regarded as “open” (or “friendly”) towards public international law. The question can, in principle, be answered in the affirmative for both constellations, even if direct applicability is of greater practical importance for international treaty law. On closer examination, the specific Austrian instrument of the “reservation of (statutory) implementation” for international treaties also proves to be an instrument that is potentially “friendly” to international law. Consequently, it can be concluded that, with regard to the direct applicability of international law, the Austrian constitution is “relatively” open (or “friendly”) towards public international law.

The interinstitutional agreement in the peruvian practice of international law: Reexamination of “the concept of treaty in international law” of Klabbers

El derecho internacional ofrece a la comunidad internacional varios tipos de instrumentos internacionales, y no todos han sido explorados completamente por la doctrina. En ese contexto, el presente artículo tiene como objetivo reexaminar el análisis planteado por Jan Klabbers en su libro “The Concept of Treaty in International Law” (1996) sobre los administrative agreements, que en la legislación peruana reciben el nombre de “acuerdos interinstitucionales” (AI). En ese sentido, se revisarán cuatro críticas que Klabbers plantea sobre tales tipos de acuerdos: i) la textura abierta de la definición de Estado en la Convención de Viena sobre el Derecho de los Tratados (CVDT); ii) el rechazo hacia la hipótesis sobre la subjetividad internacional de las entidades públicas y la existencia de un tercer orden jurídico distinto al derecho interno y al derecho internacional; iii) las dificultades de reconciliar los AI con la teoría de la responsabilidad internacional; y iv) la facilidad de repudio de los administrative agreements. Siguiendo este propósito, el artículo explora soluciones a los principales problemas identificados por el jurista holandés, revisando esos dilemas a través del caso del AI peruano, mediante una metodología analítica.

Ethnic Cleansing as a Distinct Crime under International Law: Assessing the Case of Forcible Transfer of Ethnic Koreans in the Former USSR(1937)

The forcible transfer of ethnic Koreans in 1937 marked the first precedent of the policy of wholesale eviction and displacement of populations as an instrument of ethnic cleansing in the USSR and became a pattern during and after World War II, when different ethnic minorities amounting to around 6 million people have been uprooted from their homes, with 1 to 1.5 million estimated to have perished as a result of forced internal displacement.
 The present research considers the forced internal displacement of the ethnic Korean population in the USSR to be an act of ethnic cleansing, which is a mass atrocity crime and a blatant human rights violation. Inability to bring the perpetrators to justice for forced displacement of the entire civilian population of ethnic Koreans in the USSR, which has caused the physical extermination of several thousand people and the destruction of their socio-economic infrastructures and culture, will remain in history as the most serious form of impunity and the most flagrant violation of the fundamental right of victims to justice. The state cannot be held accountable for this wrongful act since the Soviet Union, as a subject of international and geopolitical reality, no longer exists and ethnic cleansing has not yet been recognized as an independent crime under international law.
 International law sets out the human rights and each State and other authorities have a prime responsibility and duty to protect, promote and implement all these rights and fundamental freedoms, and it is essential to carry out protection activities at the national and international level. While the prohibition of forced displacement itself has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War, ethnic cleansing has not yet been written and signed in any UN treaty, which means Member States do not have to protect those who have fallen victim, since ethnic cleansing is still not a criminal charge in international law. But in 2005, a UN World Summit included ethnic cleansing along with genocide, war crimes, and crimes against humanity as four things from which each individual State has a duty to protect their populations.
 Despite the fact that forcible transfer and other practices involving the coerced, arbitrary or involuntary displacement of the civilian population from their homes, lands, and communities constitute a specific phenomenon, there is no single legal principle in international law that can be applied to all kinds of population transfers. In some circumstances, deportation or internal displacement as well as other forms of involuntary population transfers may amount to a crime against humanity, a crime of genocide or a war crime, depending on the factual elements of the case and the specific requirements of a certain crime.
 This study accordingly reviews population transfers as the constitutive element of such crimes as genocide and crimes against humanity, and transposes this comparative analysis into the context of ethnic cleansing.
 Every state has the responsibility to protect its population from four mass atrocity crimes: genocide, war crimes, crimes against humanity (that have not yet been codified in a separate treaty of international law), and ethnic cleansing (that has not been recognized as an independent crime under international law). The term ‘ethnic cleansing’ itself has been acknowledged in judgments and indictments of the International Criminal Tribunal for the Former Yugoslavia, although it did not constitute one of the counts for prosecution. One aspect of the criticism of the terms ‘ethnic cleansing’ focuses primarily on the fact that many state governments use this term even when an incident can be classified as genocide in order not to use state resources or taking action against the perpetrating State.

Challenges of Dispute Settlement through International Court of Justice (ICJ): the Case of Ukraine v. Russian Federation the Decision on Provisional Measures on Alleged Violation of Genocide Convention

This article aims to study the challenges faced by the ICJ in the international dispute resolution processes by analyzing the case between Ukraine v. Russia emphasizing the decision of the court on claims of provisional measures to stop Russian military operation in Ukraine. The qualitative approach was utilized in this research referring to both primary and secondary sources. The finding shows that ICJ has been facing challenges which is revealed in Ukraine’s case too. Regardless of the marvelous efforts of ICJ, state parties are quitting the jurisdiction of ICJ by rejecting the principle of international law of treaties. Besides, the gap in institutional independence in the process of election of judges has involved the veto power of the Security Council which is a political organ. Even more, the election of ad hoc judges is based on the intention of national representation. To this effect, the verdict on Ukraine’s claim has been decided by the split majority vote and judges’ individual independence in decision-making has been influenced by national interest, the political orientation of judges, ideology, and, diplomatic relations of states. The worst is that the judgment enforcement UN Security Council’s structural posture caused failure to execute decisions. Favoritism and intervention by unilateral sanction are also other problems. Therefore, the writer suggests the court demand a radical change to attain its intended object.