Multilateral Treaties Research Articles

The Need to Amend Article 12 of the ICC Statute: Remedying the Effects of Multilateral Treaties upon Third Parties

The rule in the ICC Statute whereby a third party national may be validly surrendered to the jurisdiction of the Court by a member state offends a most fundamental rule of international law, which is moreover of a customary nature. In addition, it causes more conflicts as compared to its purported benefits, given that it constitutes a major stumbling block for the United States and has upset the U.N.'s peacekeeping missions. The rule should therefore be abandoned in order to alleviate these concerns.

The Perspectives of International Cooperation in Competition Law and Policy

This article starts with the cautionary note that an alternative approach for international cooperation in competition law and policy is needed. After the Doha Trade Talk, negotiations about this issue reached a deadlock, so there is no longer any prospect of the WTO assuming this responsibility in the future. How the politically unacceptable solution becomes an academically thinkable option? What should the central elements of future cooperation look like? Section II gives an overview of the development of the international cooperation in competition policy and law and an insight into its achievements and challenges. Section III takes a closer look at the perspectives of a global strategy by giving further details how cooperation could be designed. Key findings are: There are many reasons to support the WTO approach. The WTO cannot escape regulating international competition law and policy by stating that it serves only to promote trade liberalisation, ignoring the benefits of fair competition. The convergence of procedural laws would be politically feasible; plurilateral agreements would be more practicable than multilateral treaties; soft law effects would be useful in forming hard law norms. More specifically, the cooperation between the WTO and the ICN would be the first and best step towards preparing this strategy option.

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJ's jurisdiction through bilateral treaties.

Locating a Multilateral Framework on Investment

This paper focuses on the precise institutional atmosphere for a multilateral treaty on investment. This particular paper does not examine any contemporary negotiating dynamics. It merely focuses on the theoretical aspects of multilateralism, the benefits of locating a treaty on investment within an existing framework which is functional, and therefore puts forward the case for the inclusion on a multilateral framework on investment within the WTO.

THE HUMAN RIGHT TO INFORMATION, THE ENVIRONMENT AND INFORMATION ABOUT THE ENVIRONMENT: FROM THE UNIVERSAL DECLARATION TO THE AARHUS CONVENTION

Citizen access to government-held information and the amelioration of environmental problems are considered statutory matters in the United States, but at the international level these are seen as fundamental human rights. In recent years two categories of human rights demanded by activists, the right to government information and the right to environmental protection, have converged into a new human right—the right to government information about the environment. The 1998 Aarhus Convention, binding in more than forty nations in Europe and Central Asia, is the first multilateral treaty to specifically denote a human right to government information about the environment. While the Aarhus Convention has some untested procedural difficulties and laborious bureaucratic requirements, the treaty can serve as a model for the world's nations at large, because citizen oversight of government actions toward the natural world is a powerful tool for those concerned about both the environment and government transparency.

Security Council Resolution 1540 to Combat WMD Terrorism: Effectiveness and Legitimacy in International Legislation

Faced with the urgent and grave threat of WMD terrorism, the international community has responded with a new approach of international legislation by adopting Security Council Resolution 1540. The traditional approach of multilateral treaties on WMD has primarily been aimed at the prevention of proliferation of such weapons to states and not to non-state actors. Another traditional approach of utilising anti-terrorism treaties has been a sort of patchwork, and thus provides no guarantee that a new treaty is made in a timely manner in response to a newly emerging type of terrorism. By contrast, the new approach of international legislation through Council resolutions makes it possible to enact rules that legally bind all UN members immediately and automatically without exception and are equivalent to those in a treaty instantly ratified by all UN members. Indeed, a new thinking is necessary to effectively respond to a new, urgent and grave threat to the international community. In that sense, Resolution 1540 is welcome. This does not, however, mean that everything is allowed if it is effective to deal with the present or imminent threat. Not only from the viewpoint of legitimacy, which guarantees the long-standing effectiveness, but also from that of the rule of law in the international community, it seems of fundamental importance to establish some kind of understanding that we discuss in this article, if international legislation by the Security Council is destined to become inevitable in the future and is to be better implemented.

Learning in International Organizations in Global Environmental Governance

In global environmental governance, numerous new international organizations have emerged from dozens of multilateral treaties signed over the last 30 years. This paper focuses on intergovernmental organizations in an organizational theory perspective with a particular focus on organizational learning processes. It explores where and when international organizations exhibit organizational learning with significant effects on the organizations' internal structure and behavior. Key hypotheses from principal-agent theory and organizational learning theory are tested in eight case studies of international organizations involved in global environmental governance. The analysis shows that organizations engage in three forms of learning: reflexive learning, adaptive learning, and no learning. Explanations of the observed variation depend on specific learning mechanisms, change agents in leadership functions and external triggers such as pressures from governments or nongovernmental actors.

Intergovernmental Organizations as Disseminators, Legitimators, and Disguisers of Hegemonic Policy Preferences: The United States, the International Whaling Commission, and the Introduction of a Moratorium on Commercial Whaling

AbstractThe recognized benefits to a hegemon of working through an intergovernmental organization (IGO) include legitimating its policy preferences, disseminating them with efficiency, and promoting stability. While most would agree that international law is important in this process, it is less easy to map exactly how international law fulfils this role. Using the cognitive structures of co-operation (CSC) approach to the political interpretation of multilateral treaties, this article demonstrates at a relatively low level of abstraction the way in which a constitutive treaty embeds an ideational structure integral to the political relationships within the IGO. This can serve the interests of the hegemon but may also make it difficult for the hegemon to disseminate a fundamentally changed policy should its preferences alter. This paper uses the CSC theory of treaty interpretation to trace the under-recognized role of the United States in bringing about the 1982 adoption of a moratorium on commercial whaling by the International Whaling Commission.

Multilateralism, Bilateralism, and Exclusion in the Nuclear Proliferation Regime

I use the nuclear proliferation regime to show that dyadic diplomacy is not necessarily incompatible with the building of a multilateral regime; bilateralism is not the opposite of multilateralism, but an efficient component thereof. Although this point will not be new to most students of institutions, no general rationale has so far been offered on the complementarity of bilateral and multilateral diplomacy. Starting from a characterization of proliferation as the result of a large number of prisoner's dilemmas played out between states engaged in local dyadic rivalries, I demonstrate that it is possible for the superpowers to design an optimal mix of threats and bribes in which states with low compliance costs join the regime on the terms of the multilateral treaty alone; states with intermediate compliance costs need additional customized incentives, delivered through bilateral agreements; and states with high compliance costs are not only left out of the regime but also punished for nonparticipation. I draw a few comparative statics that I systematically test on Nuclear Proliferation Treaty (NPT) membership data. I discuss the applicability of the model to the currency, trade, and aid regimes.

Living with a Reluctant Hegemon: The Transatlantic Conflict Over Multilateral Arms Control

Scholars and commentators have long debated a `unilateralist' tendency in US foreign policy, but have largely neglected the question of how other states attempt to deal with the problem, particularly with increasing US opposition to multilateral treaty intiatives. This article describes and explains European responses to US unilateralism in three transatlantic conflicts over multilateral arms control agreements: the AntiPersonnel Landmines Ban, the UN Process on Small Arms, and the Biological Weapons Protocol. The article shows that European responses have varied between accommodation and resistance, and tests hypotheses about four potential determinants of European choices: expected treaty effectiveness, transatlantic rivalry, consensus norms, and the influence of non-government activists. The findings suggest that European responses reflect a strong concern for treaty effectiveness, but are also constrained by norms of consensual decision-making. Activist pressure can overcome this `compromise bias' of government diplomacy.

Just Scraps of Paper?

Despite its importance in the global system, the literature provides little guidance on how treaty-making emerged as a well-accepted practice. In either assuming the appropriateness of treaty-making (and then analysing design) or treating treaties as strategic choices in the pursuit of gains (without analysing how treaties came to be a way to pursue gains), the current literature discounts the emergence and evolution of treaty-making. This lacuna contributes to a biased view of treaty-making as the epiphenomenal result of specific, ahistorical factors, rather than as a patterned, historical practice. We contend that the evolution of the practice of treaty-making is significant for questions of design/compliance, the future of multilateral interaction and global order. In addressing this concern, we pursue two linked goals. The first is self-consciously descriptive. We introduce a dataset of multilateral treaties that provides a novel picture of treaty-making across time, space and issue-areas. The second goal is explanatory. We develop and test a social constructivist and path-dependent explanation for the patterns of treaty-making evident in the data, especially 150 years of exponential growth, the spread of treaty-making across multiple issues and the diffusion of the practice across the world.

Three Proposals for Rewarding Novel Health Technologies Benefiting People Living in Poverty. A Comparative Analysis of Prize Funds, Health Impact Funds and a Cost-Effectiveness/Competitive Tender Treaty

This paper sets out to analyse three different academic proposals for addressing the needs of the poor in relation to new, rather than ‘essential’ medicines. It focuses particularly on (1) research and development (R&D) prize funds, (2) a health impact fund (HIF) system and (3) a multilateral treaty on health technology cost-effectiveness evaluation and competitive tender. It compares the extent to which each responds to the ‘market fundamentalist’ philosophy (that we maintain forms a loose theoretical background for the patent-driven approach to pharmaceutical R&D) and begins to analyse their respective strengths and weaknesses.

The Use of the 'Disconnection Clause' in International Treaties: What Does it tell us about the EC/EU as an Actor in the Sphere of Public International Law?

In the late 1980s Member States of the European Community (EC) and the EC itself began with the practice of seeking to introduce so-called disconnection clauses, according to which in their relations inter se certain of the parties to the multilateral convention would not apply the rules of the convention but specific rules agreed among themselves, into multilateral treaties to which either Member States alone were to become parties, as well as in the mixed agreements which also the EC joined. This treaty-making practice did not go unnoticed. The 2006 International Law Commission Study Group Report on Fragmentation of International Law noted the ambiguity of the and suggested that this practice raises doubts about the equal application of treaty norms between parties, possibly enabling the EC and its member states to proceed to a negative derogation from the provisions of the treaty. In October 2007 also the Committee of Legal Advisers on Public International Law (CAHDI) was mandated by the CoE Council of Ministers to examine and to report the consequences of the disconnection clause in international law and for CoE conventions. Among various means of a strategy to establish, promote and defend the organizational and substantial aquis of the EU in the multilateral sphere the technique of disconnection clauses has been chosen for this paper, being an example that has so far attracted the most attention, as an indicator for European Union's attitude towards international law. According to the provisional results, the impression is that EC/EU practice relating to the disconnection clause is not a very consistent one and that the institutions themselves do not share the same conception of its implications. Having in mind the fact that mixed agreements are becoming the prevailing treaty practice, it also seems that for this type of agreements the disconnection clause is completely superfluous, unless the strategy behind it is to facilitate actual evasion of treaty provisions that bind the Community or Union. Also not conceivable is the use of the in treaties dealing with human rights issues. Further reconsideration is due to alternative means to enable the EC/EU to retain (and/or to declare) its possibility to apply the regulatory framework of international treaties in a way pursuant to its onward level of integration and facilitating that this happens in a way transparent to other parties to respective treaties. And finally, it seems that special attention should be directed to the exclusive nature of the to the Council of Europe Conventions since these cases have attracted the most attention among practitioners and scholars and indeed it does not seem obvious why European Union should need to negatively depart from common European co-operative and substantial framework facilitated within the CoE.

Hak Asasi Manusia Kaitannya dengan Struktur Sosial Masyarakat

Human rights are universal, granted by God to all humans since their birth, and have been recognized by nations as written in the United Nations Charter and in other multilateral treaties. However, everystate has its own characteristics and values inrelation to social structures, religions, and geographical condition. Therefore, it is difficult to make the point of view of states about human rights similar, in the sense that human rights problem in a state is impossible to resolve in the same way as that in others. If the problems of human rights are resolved without considering social structures, the society will be detached from their own social structures, and will be difficult to develop values living in the society.

Sustainable Development: Now More than Ever

This Article explains how and why development emerged as a conceptual framework, the basic concepts or principles on which this framework is based, why sustainability is primarily a matter for domestic national governance, and why the United States needs to play a leading role in fostering development. Because sustainable modifies it is first important to understand what development means. Since the end of World War II, development has included at least four related elements: peace and security, economic development, social development, and supportive national governance. Each element is reflected in major multilateral treaties that provide a common framework for relations among sovereign nations as well as a shared set of national purposes. These elements together are intended to foster human quality of life and opportunity. While the development model has been successful on its own terms, it has not addressed or prevented two related problems - environmental degradation or the large number of people living in poverty. Sustainable development modifies the traditional development model by adding a fifth element, protection of the environment, but the idea of fostering human quality of life and opportunity remains the same. Key principles include integration of the environment into decision making, the polluter-pays principle, the precautionary principle, intergenerational equity, public participation, and common but differentiated responsibilities for developed and developing countries. Because of national sovereignty, development is primarily the responsibility of national governments. While environmental and conservation laws provide a foundation for development, they do not reflect the range or depth of necessary actions, nor are they necessarily the most economically efficient means of achieving development. The United States should play a leading role in addressing development because of the contribution it has made to global environmental challenges and because of its enormous potential capability to address these challenges.

The Relations between the European Union and Latin America and the Caribbean

The EU is the second-largest trading partner (after the USA) of the Latin American and Caribbean countries (LAC). The European Commission is presently in the process of negotiating association agreements with three Latin American regional trading associations, a result of the fact that the EU has traditionally preferred multilateral treaties to bilateral ones as a means of its international trade policy. These negotiations have proved to be very complex and progress is difficult. Will the two-yearly meeting of the Heads of State and Government of the EU and the LAC in Peru in May 2008 take place under the sign of a return to a policy with more emphasis on bilateral agreements? The recent agreement with Brazil seems to point in this direction.

Přístup Německa k rozšíření Evropské unie o Polsko a Českou republiku

Geopoliticka hranice, ktera rozdělovala Evropu, znemožňovala, aby Německo na jedne straně a Polsko, resp. Ceskoslovensko na straně druhe využily potencialu vzajemných vztahů. Zasadni změna nastala po skonceni studene valky, kdy se obě strany dohodly a zacaly realizovat řadu dvoustranných i mnohostranných smluv a forem spoluprace, což vyvrcholilo v roce 2004 východnim rozsiřenim EU. Tato stať se zabýva německým přistupem k Polsku a dnesni Ceske republice na dvoustranne i mnohostranne urovni před a během přistupoveho procesu, a to z politickeho i ekonomickeho pohledu. Nastin vztahů je založen na zkoumani zakladnich politických dokumentů a jejich nasledných praktických efektů. Zakladem rozboru německeho přistupu se stala charakteristika bilateralnich vztahů Spolkove republiky Německo a obou středoevropských zemi, německých motivů pro rozsiřeni EU, jakož i rozdilů v přistupu k jednotlivým zemim.

The Hidden Bias of the Vienna Convention on the International Law of Treaties

The process of treaty formation and reservations to multilateral treaties, enshrined in Articles 19-21 of the Vienna Convention on the Law of Treaties, establishes the principle that reservations are reciprocal. The treaty will be in force between a reserving state and a non-reserving state as amended by the reservation. Therefore a state that wants to exempt itself from a treaty obligation must let other nations escape that same burden. This paper presents an economic model of treaty formation and considers the effect of reciprocity on treaty ratifications among heterogeneous states. The model reveals that the Vienna Convention creates a strategic advantage for states with high costs and low benefits.

Chapter 4: Modern Development of International Human Rights Law: State Practice Involving Multilateral Treaties and Non-Binding International Documents

This is a draft Chapter 4 of The Principle of Legality in International and Comparative Criminal Law (Cambridge Univ. Press, 2009).Chapter 4 covers the international activities of states concerning legality in criminal law in the modern period. It discusses the major international human rights treaties requiring non-retroactivity in criminal law, including the International Covenant on Civil and Political Rights; the regional human rights conventions; the Convention on the Rights of the Child; and the Third and Fourth Geneva Conventions of 1949 and the two Additional Protocols of 1977. The chapter examines the reservations that states have made to these treaties to determine the effect on their obligations concerning non-retroactivity in criminal law. It also considers some of the jurisprudence from international tribunals and commissions interpreting the legality provisions of these documents.This chapter argues that the Universal Declaration of Human Rights and the modern treaties have a stronger view of the principle of legality as an international human right than did the Nuremberg Judgment, and subsequent chapters argue that this stronger view has become part of current customary international law.

Transboundary Water Policies: Assessment, Comparison and Enhancement

Transboundary water treaties are evaluated and compared using Multiple Criteria Decision Analysis (MCDA) in order to identify the most desirable treaty and suggest how existing treaties can be improved. More specifically, a flexible MCDA technique, called the Elimination Method, is employed for analyzing and comparing three multilateral treaties and one bilateral transboundary treaty according to three main criteria, which focus on each treaty’s capacity in dispute avoidance and resolution. The three multilateral agreements and one bilateral treaty which are studied consist of the 1998 Rhine Convention, 1995 Mekong River Basin Agreement, 1992 United Nations Economic Commission for Europe Convention, and the 1909 Boundary Waters Treaty between Canada and the United States, respectively. The analytical results reveal limitations of these international water policies with respect to conflict resolution, and provide directions for the possible improvement in cooperation over international water resources.