Multilateral Treaties Research Articles

The instrumentalization of religion in the Ottoman Empire at the time of European expansion (1800-1914). A journey through the historical foundations of today’s Turkish policies

This article focuses on the use of religion by the Ottoman central power in order to prevent the loss of territories (and populations) from the end of the 18th century until the beginning of the 20th century. Especially after the Treaty of Küçük Kaynarca, the Ottoman ruler and his entourage decided to use his caliphal status in two different directions. On the one hand, the symbolic leadership of the Ummah claimed by the Sultan was mobilized in remote Muslim territories in order to obtain external allies; on the other hand, the Sublime Porte instrumentalized the title of Caliph to make Western powers accept that albeit lost, territories comprising Muslim populations formerly under Ottoman rule would remain under the religious jurisdiction of the Sultan. Implemented from the last decades of the 18th century onwards, this policy has been relatively successful. The various bilateral or multilateral treaties to which the Ottoman government was a party resulted in the establishment of strong and durable ties between Muslims of regions that were previously part of the Ottoman Empire, such as Greece, Bulgaria, Bosnia or Crimea.

Transplanting the United States' Style of Safe Harbour Provisions on Internet Service Providers Via Multilateral Agreements: Can One Size Fit All?

Ideally, internet service providers (ISP) should not be burdened with policing contents that pass through their services as they have no editorial control over them. The United States Digital Millennium Copyright Act 1998 (DMCA) changes the ball game by making it mandatory on ISPs to take down infringing copyright materials if they received a notice and takedown request from a copyright holder. In exchange, the ISPs enjoy safe harbour from any liabilities that might arise from their user's action. Serious efforts are needed to transpose a similar system via negotiations and multilateral treaties and agreements involving a number of countries such as through the Trans-Pacific Partnership (TPP) Agreement. Despite the withdrawal of the United States’ (US) from the TPP, and in view of the global initiatives of harmonization of intellectual property (IP) laws, this article aims to explore the different system of ISPs’ obligations and liabilities in the twelve TPP member countries. It also examines some of the strengths and weaknesses of each system. It concludes with an argument that whilst some form of safe harbour should be created to assist IP right owners in policing their right, the US private notice and takedown system is not without its flaws and hence, other existing systems which are adopted in some of the TPP member countries are equally feasible and serve a common purpose in tackling the issue of copyright infringement vis-à-vis ISP liability. Eventually, there is no compelling reason to impose one single system on all the TPP member countries to police the internet via ISP liability.

The New Developments in International Investment Law: A need for Multilateral Investment Treaty?

This work contributes to the global discussion on the desirability of the multilateral investment treaty to ensure coherence in the way foreign investment is protected across the globe. The paper argues that whereas the international community is not ready yet to adopt multilateral rules on investment liberalisation, the time is ripe for multilateral rules on the standards of protection backed up by a multilateral court with a two-tier system. Most importantly, this contribution provides a template for the content of the standards of protection, having observed the new approaches to the traditional standards of protection typically enshrined in the bilateral investment treaties.
 

Reflections on Locus Standi in Response to a Breach of Obligations Erga Omnes Partes: A Comparative Analysis of the Whaling in the Antarctic and South China Sea Cases

AbstractThe concept of obligations erga omnes partes can be regarded as one of the key elements in the protection of common interests in international law. A particular issue that arises in this context is whether not directly injured States are entitled to institute proceedings against a State responsible for the breach of obligations erga omnes partes enshrined in a multilateral treaty. Two recent cases, i.e. the Whaling in the Antarctic and South China Sea cases, provide an interesting insight into this issue. Thus, this article seeks to examine issues of the locus standi of not directly injured States in response to a breach of obligations erga omnes partes by analysing the Whaling in the Antarctic and South China Sea cases. In so doing, this article considers the role of an international court or tribunal in effectuating obligations erga omnes partes and its limitations.

Taking Decisions on Customary International Law by the International Court of Justice in the Case Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), 2012

In spite of an ever increasing amount of bilateral and multilateral treaties covering the relationships between States it is also customary international law which still provides rules serving as the basis for judgments and opinions of the International Court of Justice. In such cases the Court frequently defines the concept of customary law by citing Article 38 (i) (b) of its Statute and explains the way it should be applied to find a specific norm applicable in the case before it. However, it may also be argued, that the Court has expressly proclaimed standards for establishing specific rules of customary law are rather frequently quite different from the manner in which the Court really proceeds. The present article comments on the Court’s judgment of 3 February 2012 on ‘Jurisdictional Immunities of the State’, in which its decision was also based on customary international law. Keywords: ICJ, jurisdictional immunity, Germany v. Italy

International Organizations and reservations to treaties: a critical review of the International Law Commission’s work

Reservations to multilateral treaties by International Organizations (IOs/Organizations) is one area where the distinction between the States and IOs is blurred. The Vienna Convention on the Law of Treaties, 1986 (1986 Vienna Convention) places IOs in a position analogous to that of States by establishing a similar regime for reservations. Besides, the International Law Commission’s Guide to Practice on Reservations to Treaties, 2011 (ILC Guide to Practice, 2011) chose to persist with the same approach. The question whether the nature of IOs could have any bearing on the subject of reservations needs closer scrutiny. Accordingly, the issues of compatibility of the system of reservations with the nature of IOs as well as the implications of the specificities of IOs for a regime of reservations that could be extended to them have been addressed in the present paper. The author argues that the system of reservations extended to IOs is compatible with the existing framework of international law. Nevertheless, the transposition of the specific reservations regime developed in the context of States to IOs is problematic and suffers from multiple challenges. The author explains how the existing reservations regime applicable to IOs fails to appreciate the complex relationship between “member-States” within Organization as well as the juridical distinction that exists between the States and IOs.

“一带一路”倡议下我国贸仲委承接投资者-国家争端问题研究 (The Research on CIETAC Undertaking Investor-State Disputes Under the Belt and Road Initiative)

Chinese Abstract: 本文主要对《投资仲裁规则》实施后贸仲委能否承接我国与一带一路沿线国家的投资者-国家争端问题展开研究。通过以仲裁透明度为切口考察了《投资仲裁规则》的规则设计，并从国内法和国际法层面，从对《仲裁法》的部分规定和我国与一带一路沿线国家BIT签订情况的考察得出贸仲委的管辖权的现实，得出尽管《投资仲裁规则》在相当程度上具有先进性，但如果缺乏《仲裁法》修改和BIT等双边或多边条约的配合，《投资仲裁规则》并不能在实践中得到运用的结论。 English Abstract: This article mainly focuses on whether CIETAC can undertake the investor-state disputes between China and the countries along the Belt and Road after CIETAC International Arbitration Rules came into effect. In the first part, the article looks into CIETAC International Arbitration Rules through its transparency designs. In the second part, the article draws the conclusion about the reality of jurisdiction of CIETAC by the investigation of Arbitration Law of the People's Republic of China and the current BITs between China and the countries along the Belt and Road. It is concluded that although CIETAC International Arbitration Rules are advanced to a considerable degree. However, without the cooperation with the amendment of Arbitration Law of the People's Republic of China and bilateral or multilateral treaties, CIETAC Investment Arbitration Rules cannot be applied in practice.

How resilient is the Torres Strait Treaty (Australia and Papua New Guinea) to global change? A fisheries governance perspective

Multi-lateral treaties are the primary institutional instrument for managing shared trans-national ecosystems, but their original designs may not be resilient to unanticipated global pressures. Here we evaluate the Torres Strait Treaty, which was ratified in 1985 to manage marine resources shared by Traditional Inhabitants from Western Province, Papua New Guinea (PNG) and the Torres Strait Islands of Australia. Since 1985 rapid Asian economic growth has driven illegal fishing and trading practices amongst PNG fishers, and impacts from mining on PNG coastal settlements, exacerbated by relatively limited management capacity on the PNG side of the border. We evaluate the resilience of the Treaty to these unprecedented pressures by applying six design principles from the literature on resilient trans-boundary river basin treaties. Our analysis indicates that the Treaty’s strengths lie in delegated inter-governmental organizations, conflict resolution and resource allocation mechanisms that account for variability. However, its weaknesses are due to the lack of formal review mechanisms, the absence of joint monitoring of potentially over-exploited species (sharks, barramundi, jewfish, mud crabs and reef fish), and low PNG capacity for enforcement. We present a ‘score-card’ synthesising our evaluation, and recommend adaptive co-management processes that will enhance the resilience of the Treaty, including the regular review of the Treaty’s structure and terms, and inclusion of external stakeholders related to cross-border trade with neighboring Indonesia, and PNG mining. We discuss the relevance of our approach for the design and evaluation of multi-lateral marine resource-sharing agreements, and regional security.

The Dispute Settlement Mechanisms in Major Multilateral Treaties

Although dispute settlement mechanisms providing for compulsory referral to a third party are rarely used, their presence can, and usually do, have a major underlying influence over the actions of States, which are typically anxious to avoid lengthy and expensive dispute settlement procedures. We undertook a quantitative analysis of the dispute settlement mechanisms of 236 major multilateral treaties and found that most of the multilateral treaties provide for compulsory referral to a third party (ie, they can be triggered without the consent of both disputing parties). Of those treaties, the majority provide for compulsory referral to an arbitral tribunal. These findings are significant, as they debunk the myth that treaties providing for compulsory referral to a third party are uncommon. This paper also looks at the various compromise solutions that have been developed over the years in response to State disagreement over whether to include compulsory third party mechanisms in treaties, as well as the number of treaties that contain voluntary and non-third party dispute settlement mechanisms. This analysis will enable a better understanding of the different types of dispute settlement mechanisms found in multilateral treaties and their background and purpose. We also hope that this paper will be useful for those involved in the negotiation of dispute settlement provisions in future multilateral agreements.

Taking the Paris Agreement Forward: Continuous Strategic Decision-making on Climate Action by the Meeting of the Parties

There is a new cloth on the table that provides the setting for global climate action. The 2015 Paris Climate Agreement represents the future legal framework designed to facilitate global efforts to combat climate change in the long-term. This article looks at the fabric of this framework through the lens of the law-making procedure. The lawmaking procedure that brought the Paris Agreement into life and will sustain it, marks a departure from the traditional framework convention-cum-protocol approach and changes it into a ‘framework convention-cum-decisions’ model. While the Kyoto Protocol was prescriptive in setting individual emission targets for developed countries, the Paris Agreement sets forth an evolutionary multilateral treaty and enables Parties to steer collective and individual efforts towards a worldwide temperature goal through continuous, strategic decision-making. The article demonstrates that the Agreement becomes operational only in the context of the decisions that were adopted by the Conference of Parties with the Agreement and in the context of further decisions that need to be adopted by the ‘Conference of Parties serving as the meeting of the Parties to the Paris Agreement’. Many of the skeletal provisions and mechanisms of the Paris Agreement need to be fleshed out and operated through further decisions. New functions and competences conferred on the ‘Conference of Parties serving as the Meeting of the Parties’ change the role that this meeting of the Parties has, making it the driver for the development of the law on combating climate change. This international lawmaking is reinforced through the integration of Parties’ decisions within legal orders of Parties, the European Union legal order will be used as an example of one legal order acting as a transmission belt. The article contends that this strategic decision-making affects the legal certainty of international climate action and contravenes the balance between legislative approval of an international agreement and the prerogative of national governments for strategic decisions.

Extradition Under International Law: Overview of Basic Principles, Applications and Challenges in Extradition Law

At present, the laws relating to Extradition is acquired a great attention on the globe due to rapid escalate of International Crimes and Trans-National Organized Crimes. The Extradition is based on the Latin term “aut punier aut dedere” (either punish or surrender). Extradition law is acting an important role to surrender and convict the fugitive criminal who is trying to escape from the law. The law of Extradition mainly based on multilateral or bilateral treaties and municipal laws consolidated by particular countries. This work mainly focused on basic principles and applications of Extradition law and the position of Extradition law under the International Law. Through this work, the contemporary developments of Extradition law, its application and challenges under the criminal justice system of Sri Lanka will be analyzed in a critical manner.

The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements

This article attempts to provide a definitive overview of the text, structure, history, and purpose of the Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation), a new multilateral treaty developed by the U.N. Commission on International Trade Law (UNCITRAL). The Convention, scheduled to open for signature in August 2019, provides a uniform, efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes — akin to the framework that the 1958 New York Convention provides for arbitral awards. Unlike the other primary international organizations that develop commercial law treaties, UNCITRAL does not commission official commentaries or explanatory reports for the treaties it produces. This article aims to fill this gap based on the records of the negotiations and the firsthand experiences of the author in proposing and participating in the negotiations.

The Revocability of Instruments of Withdrawal from Mulitlateral Treaties with Particular Emphasis on the United Kingdom's Article 50 TEU Notification

This paper considers whether the United Kingdom’s notification under Article 50 TEU on 29 March 2017 can be unilaterally revoked. The article also considers the right of states to revoke of unilateral notifications of withdrawal from multilateral treaties more generally due to the fact that the United Kingdom’s right to withdraw its Article 50 TEU notification is (at least in part) dependent on an applicable right of withdrawal in customary international law. The paper addresses the applicability of Article 68 the Vienna Convention of the Law of Treaties (VCLT) to the Article 50 TEU unilateral revocation debate paying particular attention to the drafting history of the article as well as the arguments for and against the customary status of any right of unilateral revocation of instruments of withdrawal from multilateral treaties. The article also examines whether Article 50 TEU, by express words or necessary implication, excludes the operation of any alleged customary right to unilaterally revoke an instrument of withdrawal before it takes effect.

RECOGNITION AND ENFORCEMENT OF JUDGMENTS BETWEEN CHINA, JAPAN AND SOUTH KOREA IN THE NEW ERA: SOUTH KOREAN LAW PERSPECTIVE

This article discusses the rules for recognition and enforcement of foreign judgments in the Republic of Korea (hereinafter referred to as “South Korea” or “Korea”). Articles 217 and 217-2 of the Civil Procedure Act of Korea and Articles 26 and 27 of the Civil Enforcement Act of Korea provide for the recognition and enforcement of foreign judgments respectively. Korea has not entered into any bilateral or multilateral treaties regarding the recognition and enforcement of foreign judgments and is not a party to the Convention on Choice of Court Agreements. The article also considers the current undesirable status of recognition and enforcement of judgments in the region consisting of China, Japan and South Korea (hereinafter referred to as “Region”) and suggests a course of action to be taken to improve the situation. The author believes that the experts of the Region should embark upon a project to improve the current situation and that the first step should be to exchange and gather information on the current legal regime of the countries in the Region on the recognition and enforcement of judgments. The author looks forward to future cooperation among the experts in the Region on this topic and is confident that the reciprocity requirement, which currently is a major obstacle to the mutual recognition and enforcement of foreign judgments in the Region, will be overcome in the near future.

Formation Issues and Development Prospects Contractual Base of Eurasian Economic Union

This article sets the task to consider the main issues of the formation and development of the legal framework of the regional integration association of states – the Eurasian Economic Union (EAEU). The development of international economic integration is impossible without a legal framework, since it is through bilateral and multilateral treaties, as well as domestic legislation, that the states parties to international economic integration carry out political decisions and ideas into real life. Prospects for the development of the Eurasian Economic Union require an analysis of new approaches to integration interaction, as well as the solution of certain legal problems. First of all, it concerns the legal support of the functioning of both the EAEU itself and the enactment of acts of its bodies. This article focuses on solving many legal problems in the framework of the implementation of customs cooperation between the Member States of the Union, as well as the adoption of national acts, the introduction of changes and amendments to national legislation.

Bureaucratic Politics in Multilateral Treaties: Focusing on the Geneva Convention on the Continental Shelf in 1958 and Treaties on Climate Change

Bureaucratic Politics in Multilateral Treaties: Focusing on the Geneva Convention on the Continental Shelf in 1958 and Treaties on Climate Change

The Limits of Information Revelation in Multilateral Negotiations: A Theory of Treatymaking

States negotiate over the specific terms of multilateral treaties because those terms determine states' willingness to ratify the treaty. A state might decline to ratify a treaty it otherwise supports because specific terms are too far from those it prefers. Negotiators would like to uncover the minimal terms needed to secure the ratification of key states, but under what circumstances will those states candidly reveal those terms? Using a spatial model of the issues in a treaty negotiation, we use mechanism design to determine what information states will reveal. States are willing to reveal their preferred resolution of tradeoffs between the different issues but not the minimal terms they require for ratification. Further, negotiations cannot always separate types that need concessions to ratify from other types that would like concessions but would ratify the treaty even if they do not receive them.

La Ley de lo Contencioso de 1998 y los arbitrajes internacionales contra España

El presente trabajo no tiene por objeto lo establecido en la LJCA sobre tal o cual extremo, sino algo que debiera haberse contemplado en ella y no lo está: el régimen de los arbitrajes internacionales de inversión, en base a Tratados bi- o multilaterales, cuando tienen por objeto disposiciones que también pueden ser impugnadas en vía contenciosa.
 La carencia se ha puesto de relieve con especial crudeza con ocasión de los litigios sobre la reforma de 2013/2014 (de sentido restrictivo) del régimen económico de la producción de electricidad con fuentes renovables, que ha dado lugar a pronunciamientos desestimatorios en España y, en base al Tratado de la Carta de la Energía, a laudos de sentido contrario.

The ‘Global Pact for the Environment’ – A New Instrument to Protect the Planet?

This article aims to shed light on the newly proposed initiative to negotiate a ‘Global Pact for the Environment’. After an overview of the Pact, the article discusses the main provisions of the current draft of the Pact, such as the right to live in an ecologically sound environment, the codification of existing environmental principles and the introduction of new principles. The article examines the relationship between the Pact and existing multilateral environmental agreements and institutions and comes to the conclusion that the stated intention for the Pact to serve as a ‘legal umbrella’ for the existing multilateral environmental treaties raises both political as well as legal questions. Furthermore, the Pact possesses only limited potential to strengthen international environmental law. Nonetheless, the initiative has the potential to trigger reforms in international environmental law by putting the protection of the environment at the top of the global agenda.

International Treaty Ratification and Leader Turnover

Political leaders are ultimately responsible for their country?s foreign policy, but our understanding of how executive turnover affects the likelihood of international treaty ratification remains limited. For contributing to this debate, I define leader change as the replacement of the executive leader by a new one who relies on different social groups for support. Focusing then on those cases where new leaders can assume office only from predecessors who plausibly supported treaty ratification, I expect that ? in light of the predecessor?s support for an agreement and the change in the domestic support base ? leadership turnover makes ratification less likely. The empirical implication is tested with quantitative methods using data on multilateral treaties of the post-Cold War era. The main findings and a series of additional analyses provide strong and robust evidence for the theoretical argument. This research sheds new light on the determinants of multilateral cooperation as well as the role of government leaders in international affairs and foreign-policy decision-making.