Multilateral Treaties Research Articles

Executive Authority under the U.S. Constitution to Enter a Pandemic Treaty or International Agreement

In May 2021, the World Health Assembly took the extraordinary measure of calling for a Special Session to consider an international treaty or other agreement to address pandemic prevention, preparedness, and response. That Special Session will take place in late November and early December 2021. Whatever form an international agreement may take, whether binding treaty or precatory recommendation, the shape of the U.S.'s participation will be shaped by its internal constitutional mechanisms. Under the U.S. Constitution, the President may make treaties that become binding federal law with the concurrence of two-thirds of the U.S. Senate. Given the composition of the chamber and U.S. refusal to consider several multilateral treaties over the last several decades, that outcome is remote. However, the U.S. Constitution contemplates other compacts and understandings that the President may join either through previous treaty accession or statutory authorization from Congress and, in a narrower class of Article II powers, pursuant to his own foreign affairs authority. With focus on how the U.S. joined the Paris Climate Accords and recent multilateral trade agreements, this Essay analyzes these constitutional pathways to an international pandemic agreement, and how current statutory frameworks and Article II authority may shape the feasibility of the U.S. joining one or more international agreements of varying binding effect.

Is There a Need To Negotiate a Multilateral Investment Treaty?

Is There a Need To Negotiate a Multilateral Investment Treaty?

Proceeding on Cases with the Participation of Foreign Persons in International Procedure Law of Russia and Belarus

This article is dedicated to one of the most interesting aspects of International Procedural Law – litigation with the participation of foreign persons. Authors focused on a comparative analysis of Russian and Belarus legislation concerning the regulation of international procedural relations. Article includes two parts: the first one considers international jurisdiction of Russian arbitrazh courts and Belarus economic courts on commercial matters; the second one examines the recognition and enforcement of foreign judgments in commercial matters on the territory of Russia and Belarus. Authors deeply scrutinized a wide range of legal documents including domestic legislation, bilateral and multilateral international treaties of regional character in order to show the convergences and divergences in Russian and Belarus procedural law concerning participation of foreign persons in international commercial litigation.

Proceeding on Cases with the Participation of Foreign Persons in International Procedure Law of Russia and Belarus (The end)

This article is dedicated to one of the most interesting aspects of International Procedural Law – litigation with the participation of foreign persons. Authors focused on a comparative analysis of Russian and Belarus legislation concerning the regulation of international procedural relations. Article includes two parts: the first one considers international jurisdiction of Russian arbitrazh courts and Belarus economic courts on commercial matters; the second one examines the recognition and enforcement of foreign judgments in commercial matters on the territory of Russia and Belarus. Authors deeply scrutinized a wide range of legal documents including domestic legislation, bilateral and multilateral international treaties of regional character in order to show the convergences and divergences in Russian and Belarus procedural law concerning participation of foreign persons in international commercial litigation

Considerations on Limits to Dynamic / Evolutive Interpretation of Constituent Instruments of International Organizations (with the Particular Reference to the UN System)

International organizations, for the purpose of further considerations are these established by multilateral treaties constituting their internal legal order and establishing legal personality for them, which is independent and separate from their member states. The emphasis in this article is on the UN and its Specialized Agencies. Since in practice their constituent instruments are interpreted on the daily basis in the continuous process of performing their functions and filling the gaps, some of extensive interpretations may lead to informal modifications of the constitutional instruments. To examine whether there are any limits to the dynamic / evolutive (extensive) interpretations is of grave significance both for international law doctrine and practice, as well as political reality. In conclusion: the Report and the IDI Resolution adopted on 4th September, 2021, are the good ground for better understanding of recent developments in the daily lives of the UN System.

Empresas y derechos humanos: La evolución histórica de la regulación internacional de las empresas transnacionales en materia de derechos humanos

El artículo versa sobre la regulación internacional de las empresas transnacionales en materia de Derechos Humanos. El texto inicia explicando los conceptos base necesarios para comprender el debate. Continúa con la descripción de los principales hechos en cuanto a la evolución de la regulación internacional. Por último, el autor plantea que el siguiente paso será la adopción de un tratado multilateral que busque otorgarle mayores garantías a los individuos.

Arms Control 2.0: Updating the Cyberweapon Arms Control Framework

This Note analyzes multiple problems with the existing arms control framework for cyberweapons as well as surveillance technology and calls for four specific areas of reform. First, the existing framework does not specifically enumerate the software controlled under existing arms control treaties, which can lead to gaps in international export control compliance. Cyberweapons should be enumerated with greater specificity to prevent confusing and disjointed implementation by states. Second, the divide between Wassenaar and Shanghai Cooperation Organization conceptions of what constitutes a cyberweapon reduces the effectiveness of international control because nations do not share an agreed upon cyberweapon definition. States should form a multilateral treaty utilizing a shared definition to ensure cyberweapon exports are regulated by a treaty and include a greater diversity of countries covering a larger share of this market. Third, the Wassenaar Arrangement, the current treaty regulating many cyberweapon exports, fails to impose strict controls on cyberweapons and surveillance technology. Under the Wassenaar Arrangement, cyberweapons and surveillance technology should be listed as “very sensitive items” and subject to additional control because exports can lead to derivative viruses, which multiply the harm of the original export. Finally, the existing framework is unclear in its differentiation between cyberweapons subject to strict control as weapons and those subject to less control as dual-use items. International control lists should include an addendum to the general rule assigning particular types of software to consistently implement each category across jurisdictions.

State Sovereignty in the Planetary Management of Natural Resources

Protagonists of global environmental governance often view the sovereign State as well as the principle of sovereignty as major stumbling blocks for effective environmental conservation and sustainable development. Some even herald the demise of the idea of the sovereign State. However, reality has it differently. Sovereignty is no longer an unqualified concept. Manifold new duties have been imposed upon the sovereign State as a result of the progressive development of international law. Much of the modern international law movement vests States with the responsibility to adopt regulations, to monitor and secure compliance and exercise justice in order to achieve its implementation, whereas supranational global environmental governance has remained notoriously weak. This article examines this proposition by reference to the environmental and developmental role of states in three landmark multilateral treaties: The United Nations Law of the Sea Convention (1982), the Convention on the Conservation of Biological Diversity (1992) and the Paris Agreement on climate change (2015). They demonstrate that sovereignty serves as a key organisational principle for the realization of global values, such as environmental conservation and sustainable development.

On the hierarchy of normative legal acts in the legal system: experience of consular work abroad

INTRODUCTION.The article analyzes the current problems of the consular service. In the practical work of officials of the consular service of the Russian Federation, periodically arise situations in which it is necessary to make decisions taking into account the hierarchy of national legal acts and norms of international law, which are an integral part of the legal system of Russia. The situation complicated by the lack of a normative document that clearly and unambiguously regulates the hierarchy of legal acts that make up this system. The present article, based on the experience of the authors' work abroad, is a comprehensive study for making possible decisions within the framework of the issue under consideration on those non-standard issues that periodically are faced by employees of consular offices.MATERIALS AND METHODS.This article is based on the analysis of the provisions of article 15 of the Russian Constitution (taking into account the recently introduced amendments to the Constitution), on the decisions of the Constitutional and Supreme courts of Russia, laws of the Russian Federation, in particular, of the Civil code of the Russian Federation and the Federal law «On international treaties of the Russian Federation», and also in comparison of the legal systems of Russia, USA and Norway in the question of the primacy of national or international law, as well on real situations that occurred during one of the author's work in the consular service of the Russian MFA. The research method is based on the General scientific method of cognition.RESEARCH RESULTS.The article leads to the conclusion that in the question of the primacy of national or international law in the domestic legal system of a state gives its legislation different degrees of freedom to the Supreme state bodies in a flexible approach to the implementation of international legal obligations within the framework of the generally recognized principle of international law «pacta sunt servanda» – «treaties must be observed». Besides, within the framework of Russian national law, there are legally established opportunities to implement the norms of subordinate normative acts in the presence of a law that regulates the same type of relations in a different way.DISCUSSIONS AND CONCLUSIONS.The article provides a regulatory framework that can be used by Russian foreign offices and the MFA in case of violation by the authorities of the host country of the norms of bilateral and multilateral treaties to which Russia and the country concerned are parties. As a conclusion, it is suggested that a clear understanding of the hierarchy of normative acts in the Russian legal system is necessary for its competent application by officials of Russian foreign offices in solving issues in the field of national legislation, as well as the use of international law by these persons in protecting the rights and interests of the Russian Federation, its legal entities and individuals.

On Obligations Erga Omnes Partes

This Article addresses the development of obligations erga omnes partes and their legal status, and clarifies the extent to which the notion has had an impact on the enforcement of multilateral treaties and, in particular, human rights conventions by examining international and regional case law, soft law instruments, and state practice. It argues that the endorsement of the concept by the International Court of Justice (ICJ) has the potential to dramatically expand its application to breaches of all kinds of multilateral treaties where such breaches amount to violations of obligations pertaining to a treaty’s object and purpose. In this sense, a violation of an obligation erga omnes partes is conceptually identical to a “material breach” envisaged under Article 60(2) of the Vienna Convention on the Law of Treaties, but the development of the relevant rules gives the claimant state an additional procedural remedy to institute proceedings against the violating state to end the breach.

Extradition clauses in multilateral international treaties: international legal aspects

The article focuses upon the legal sense of extradition clauses in multilateral criminal law treaties. The methodology of the article embraces both general methods, such as analysis and synthesis, and specific ones, such as comparative, statistical, and linguistic methods. A multi-pronged evaluation of the clause is performed, with particular scrutiny given to the different kinds of authentic English- and Russian-language wording intrinsic to this type of treaty. Such clauses are prone to have a direct effect and are subject to implementation by state parties to an international treaty, along with its substantive norms. In some cases, an extradition clause is considered a substitute for a special extradition treaty, notwithstanding the deficiency of the presumption of inclusion of crimes criminalized by the conventions in bilateral extradition treaties. Irrespective of the salient virtues inherent in such clauses (for instance, the absence of the necessity to elaborate and conclude a special extradition treaty; the procurement of enforcing substantive norms; the existence of legal mechanisms provided for in such conventions by dint of which state parties are entitled to resort to international judicial organs, in case of any dispute concerning the application or interpretation of a treaty), the shortcomings, among which are a narrow range of crimes to which the clause relates, and a set of legal hindrances connected with the implementation process, are unequivocal.

From Integration Through Law to Global Community Law? Between Arbitration, Adjudication and Judicial Overreach

Claims of ‘judicial overreach’ currently disrupt the World Trade Organization (WTO), investor-state arbitration and multilevel judicial governance in the European Union. Section I discusses the postwar evolution from the neo-liberal ‘Washington consensus’ to the ordo-liberal ‘Geneva consensus’ promoting global human rights, multilateral trading systems and transnational rule-of-law based on UN/WTO law. The neoliberal US assault on WTO law and adjudication (discussed in Section II) and China’s totalitarian state-capitalism (Section III) challenge multilateral treaty systems and related adjudication protecting global public goods. The claims of ‘judicial overreach’ in multilateral trade, investment and European adjudication (discussed in Section IV) reveal systemic conflicts among regulatory and judicial approaches. Section V concludes that European Union law requires defending the ‘constitutional functions’ of ordo-liberal integration law through EU leadership for plurilateral WTO reforms; economic, environmental and human rights litigation in Europe confirm the need for participatory governance in multilevel legal and judicial protection of the UN/WTO sustainable development goals.

Legal and environmental factors hindering the development of scientific and technical cooperation in SCO countries

The present work is devoted to the analysis of problems in development of international scientific and technical cooperation between the Shanghai Cooperation Organization member-states. Among the main factors that determine the development of scientific and technological sphere, the most important are legal factors, the detailed analysis of which is presented for each member state of Shanghai Cooperation Organization. The study of legal factors hindering the development of scientific and technological cooperation is based on the peculiarities of national legal regulation of scientific and innovation activity and the shortcomings of international agreements within the SCO. The authors identify both internal and external legal factors that influence the development of international scientific and technological collaboration. The authors consider the state of legal regulation of national science and technology policy and the legal status of organizations involved in the development of science as internal legal factors. External legal factors include the existence of bilateral treaties between the countries of the Shanghai Cooperation Organization regulating scientific and technological cooperation, as well as the content of multilateral treaties on scientific and technological cooperation between all member states of the Shanghai Cooperation Organization. Based on the results of the study, the authors conclude that it is necessary to harmonize the national legislation of the Shanghai Cooperation Organization countries on the issues of legal regulation of scientific and technological cooperation, as well as to consolidate at the international level the legal mechanisms for implementation of certain aspects of cooperation in the scientific and technological fields.

Perceived to slack: secondary securitization and multilateral treaty ratification in Israel

ABSTRACT This study emphasizes the place that cognitive processes rather than objective concerns have in ratification of multilateral treaties. We argue that secondary securitization by non-security experts hinders treaty ratification. When security is at stake, the potential costs of undesired action by the treaty’s IO are deemed higher, risk-aversion increases, and asymmetry among the member states’ policy perceptions is greater. Thus, our secondary securitization model improves over existing explanations of multilateral treaty ratification by assuming that national selfishness drives treaty (non)ratification, but not necessarily in a rational way. We support our argument with survival analysis regarding the ratification process in Israel of 243 treaties, based on documents retrieved from official archives, and controlling for a variety of competing explanations. We break securitization into objective and subjective components and correct for the possibility of undocumented acts of securitization. Our results are robust to all this. We follow with discourse and content analysis of official discussions of three human rights treaties (ICCPR, ICESCR, and CEDAW). We innovate theoretically by distinguishing secondary from primary securitization, and by combining Securitization and Principal-Agent theories. We believe our results travel well for other countries in which security concerns overshadow aspect of civilian life, and IOs are regarded with suspicion.

Three Key considerations for biodiversity conservation in multilateral agreements

AbstractIt is nearly three decades since the world recognized the need for a global multilateral treaty aiming to address accelerating biodiversity loss. However, biodiversity continues to decline at a concerning rate. Drawing on lessons from the implementation of the current strategic plan of the Convention on Biological Diversity and the 2010 Aichi Targets, we highlight three interlinked core areas, which require attention and improvement in the development of the post‐2020 Biodiversity Framework under the Convention on Biological Diversity. They are: (1) developing robust theories of change which define agreed, adaptive plans for achieving targets; (2) using models to evaluate assumptions and effectiveness of different plans and targets; and (3) identifying the common but differentiated responsibilities of different actors/states/countries within these plans. We demonstrate how future multilateral agreements must not focus only on what needs to be done but also on how it should be done, using measurable steps, which make sense at the scales at which biodiversity change happens.

Literature Review: Tatiana Falcão, A Proposition For A Multilateral Carbon Tax Treaty, Doctoral Series Vol. 47, Ibfd, 2019

Literature Review: Tatiana Falcão, A Proposition For A Multilateral Carbon Tax Treaty, Doctoral Series Vol. 47, Ibfd, 2019

The Impact of the OECD BEPs Project on Tax Treaties: Access, Entitlement and Investment Protection

In recent years aggressive tax strategies lead to a new phenomenon denominated by the OECD as ‘base erosion and profit shifting’ (Beps). The OECD and G20 countries adopted in 2013-15 a 15-point Action Plan to address Beps (the ‘Beps Project’). In respect to tax treaties the OECD adopted in 2016 a Multilateral Instrument and in 2017 issued a new release the Commentary to the OECD Model Tax Convention on Income and on Capital. These changes were approved as part of the Beps Project in Actions 2, 6, 7 and 14. The article describes the Model/Commentary 2017 and looks at the impact of the OECD Beps Pproject on tax treaties in terms of PE access, entitlement and investment protection The article focuses on three main dimensions for a resident of a Contracting State of doing business in the other Contracting State: first, the tests required for doing business through PE (section 2); second, the new set of requirements that need to be met to have full entitlement to the tax treaty (section 3); third, the basic rules for doing business through a corporate vehicle, once the entitlement requirements have been met (section 4). The article concludes with the discussion of tax treaty dispute settlement and enforcement by looking at the mutual agreement procedure, transfer price allocations in tax treaties, and tax treaties and information (section 5). Base erosion, profit shifting, tax avoidance, multilateral tax treaties, OECD Model Tax Convention, BEP s

International collaboration between collections‐based institutes for halting biodiversity loss and unlocking the useful properties of plants and fungi

Societal Impact StatementThe United Nations' Sustainable Development Goal (SDG) 17 calls for “strong global partnerships and cooperation” to support the other SDGs. The collections‐based science community offers many examples of conservation of plant and fungal biodiversity, sharing, repatriation and aggregation of data, access to new technologies, supply of plant and fungal material, strengthening capacity of practitioners, and benefit sharing with the providers of biodiversity and genetic resources. Collaboration framed by workable multilateral treaties will increase our understanding of plant and fungal diversity, help halt biodiversity loss, and accelerate our sustainable use of plants and fungi and the exploration of their useful traits.SummaryCollections‐based institutes are at the forefront of generating knowledge and understanding of plant and fungal biodiversity. Through the analysis of occurrence data, the use of modern technologies to better understand the evolutionary relationships between species and documentation of their useful properties, the work of collections‐based institutes provides good models for conservation; addressing species loss and improving sustainable use of plants and fungi. Nevertheless, the pressure on the planet's plant and fungal diversity is relentless. We argue that a massive increase in the accessibility of preserved and living collections of plants and fungi is required. An increased scale of responsible exploration to both conserve and unlock the useful properties of plants and fungi is needed to deliver solutions to the many global challenges facing humanity and the planet. This article explores the role of collaborations between collections‐based institutes and their partners in preventing biodiversity loss and delivering sustainable development. Drawing on examples from herbaria, agricultural and wild species genebanks, mycological collections, an international NGO, and the botanic garden community, we demonstrate how collaboration improves efficiency and impact. Collaborations can be peer to peer, institutional, governmental, national, or international, they may involve work with local communities and are frequently a combination of these. We suggest the five key benefits to collaboration and show that with trust, understanding, and mutual respect, powerful and sustainable partnerships develop. Such trust and respect are hard won, but once established, sustain a high level of commitment, enable development of shared long‐term visions of success, and attract diverse funding streams.

YURISDIKSI MENGADILI PELAKU PEMBAJAKAN PESAWAT UDARA BERDASARKAN PRINSIP MANDATORY EXTRADITION

Extradition is basically a form of international cooperation to arrest or hand over a fugitive, suspect, defendant or convict who escape to another country. Extradition is based on agreements between countries to deal with crime. Mandatory extradition in The Hague Convention 1970 of 1970 certainly caused another debate, which in general we know that extradition is an agreement made between countries, and sometimes a country also does not want to make an extradition treaty with another country. However, with this principle that the member countries of the convention without exception are required to conduct extradition of the perpetrators of aircraft hijacking. The research method used is normative with the statues approach and conceptual approach. In the research it was found that the 1970 The Hague Convention was likened to a multilateral extradition treaty for convention participating countries. The principle of mandatory extradition stipulates extradition to be an obligation that must be carried out by each participating country of the convention as a step to tackle and try airplane hijackers.

Third-party State Intervention in Disputes Before the International Court of Justice: A Reassessment of Articles 62 and 63 of the ICJ Statute

which are normally of a bilateral nature, increasingly also affect the interests of third states. Third states may in many instances wish to intervene in such disputes. Articles 62 and 63 of the Statute of the ICJ has attempted to accommodate such an eventuality. Article 62 provides for intervention by a third state if it has an interest of a legal nature which may be affected by the ICJ’s decision in the case. Article 63 allows for member states of a multilateral treaty to intervene in cases involving the interpretation of such a treaty. Intervention under Article 62 is in the discretion of the ICJ. Intervention under Article 63 is a right. Applications to intervene under Article 62 have only been successful in three instances and, applications to intervene under Article 63 have only been successful in two instances. It is submitted that the ICJ should be more flexible in allowing third-party interventions by interpreting Articles 62 and 63 less strictly. This is more in accordance with the greater interdependence of states in the modern world and can prevent the duplication of proceedings. Such flexibility can only enhance the effectiveness of the ICJ in achieving its mandate.