Multilateral Treaties Research Articles

Treaty revision in the European Union: constitutional change through international law

The main instrument of constitutional change in the European Union, during the last twenty years, was the revision treaty, that is, an international agreement between the member states of the European Union making amendments to the so-called �founding treaties�. The recent adoption of a European Constitution was seen by all the leading actors, and without any controversy, as involving again a revision of the current Treaties in accordance with the procedure of Article 48 EU Treaty, rather than the creation of a wholly new legal edifice. This Constitution thus fits, despite its many novelties, in the long chain of European revision treaties. All the revision treaties were important steps in the development of the European integration process. They were also, from a legal perspective, cases of amendment of multilateral treaties subject to the legal regime set out in Articles 39 to 41 of the Vienna Convention on the Law of Treaties. European treaty revision was a success story in what could be called its golden age (1985�2000), when amendments were successfully made and implemented in accordance with the traditional method of intergovernmental conferences followed by national ratifications. However, increasing criticism of this traditional method led, not to the rejection of the international law framework altogether, but to claims for reform of the particular expression of that international law regime in the EU context. Those misgivings related to the exceedingly diplomatic (and therefore opaque) character of treaty negotiations, and to the excessive rigidity caused by the �double lock� of overall consensus by all governments at the intergovernmental conference, followed by universal ratification in all the member states. The article examines the recent debates on these points, as well as the remedies which the new European Constitution adopted or failed to adopt.

International Law: A Welfarist Approach

This paper evaluates international law from a welfarist perspective. Global welfarism requires that international law advance the well being of everyone in the world, and scholars influenced by global welfarism and similar cosmopolitan principles have advocated radical restructuring of international law. But global welfarism is subject to several constraints, including (1) heterogeneity of preferences of the world population, which produces the state system; (2) agency costs, which produce imperfect governments; and (3) the problem of collective action. These constraints place limits on what policies motivated by global welfarism can achieve, and explain some broad features of international law that otherwise remain puzzling. These features include the central place of state sovereignty in international law despite the moral arbitrariness of borders; the weakness of multilateral treaties; the limited role of individual liability in international law; the predominantly legislative nature of international institutions and the weakness of executive and judicial institutions; and the absence of redistributive obligations in international law.

Is Transparency of Governmental Administration Customary International Law in Investor-Sovereign Arbitrations? -- Courts and Arbitrators May Differ

‘No authority was cited or evidence introduced to establish that transparency has become part of customary international law’ So said Tysoe J. of the Supreme Court of British Columbia, disagreeing with the arbitral Tribunal in the Metalclad case under NAFTA Chapter 11.1 Is Tysoe J. correct? Some very prominent courts take a restrictive view toward the recognition of international customary law. Some very prominent international arbitrators have less difficulty finding it. The concept of international customary law of transparency and security for international investors under bilateral and multilateral investment treaties is familiar to international commercial arbitrators. The content of that concept is, however, far from clear. This article will first examine how the United States federal courts have recently defined international customary law. Second, it will examine how the oft cited Metalclad arbitration award under Chapter 11 of North American Free Trade Agreement defines transparency of governmental administration as it relates to investors protected by investment treaties. Third, it will examine how a number of recent arbitral Tribunals and the World Trade Organization Appellate Body have dealt with the concept of transparency. Fourth, it will endeavour to deduce a consistent basis in law for the awards discussed. Interestingly, United States Federal courts and arbitrators do not refer to each other when discussing international customary law. It is unlikely that such learned jurists and arbitrators are unaware of what the other is saying. One might suspect that citing each other does not in their view add much to the definition of international customary law, at least in the area of law in dispute before that court or tribunal. Then again, it might be a struggle by the proponents of positivism showing deference to law-making bodies against international arbitrators who believe they have the authority and obligation to contribute to the …

Penaatan Atas Perjanjian Multilateral di Bidang Lingkungan Hidup

Multilateral treaty in environmental area is one of the international treaty that defined in Convention on the Law of the Treaties, Vienna, 1969 as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. However, international environmental law is tending to be considered as “soft law” rather than “hard law” because its compliance approaches. This article will discuss about the compliance measure from the international point of view because international compliance is based on the balance of advantages and consequences of a state should it participate in MEAs.

Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations

This Note will examine developments in the practice of the United Nations secretary-general on reservations and declarations to treaties, particularly since 1994 when the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties was last updated. This period was marked by some notable developments in the previous practice, especially in connection with human rights treaties.The Vienna Convention on the Law of Treaties of 1969 (Vienna Convention) provides the framework for the functions of the secretary-general in his role as depositary of multilateral treaties. Most aspects of the law relating to reservations and declarations to treaties are also codified in the Vienna Convention.Over five hundred multilateral treaties are deposited with the secretary-general. The complex requirements relating to these treaties and the concerns of the many disparate states that may undertake treaty actions with regard to them have significantly influenced his practice. He is also conscious of the political sensitivities surrounding his decisions and the need to protect his own integrity and impartiality.

Construction Site for More Justice: The International Criminal Court After Two Years

The International Criminal Court (ICC) was officially opened in The Hague on March 11, 2003, in a special ceremony attended by Queen Beatrix of the Netherlands and United Nations secretary-general Kofi Annan. Less than four years after the historic breakthrough by the Diplomatic Conference of Plenipotentiaries in Rome on July 17, 1998, the Statute of the ICC had entered into force on July 1, 2002. The required number of sixty ratifications, which is laid down in Article 126, paragraph 1 of the Rome Statute, was reached much faster than for other comparable multilateral treaties and faster than had been expected by the global public. Secretary-General Annan attracted widespread attention when he observed that July 1, 2002, was a decisive landmark in breaking with the cynical worldview of people like Joseph Stalin, who is alleged to have remarked that while “a single death is a tragedy, a million deaths is a statistic.”

Emilio Augustin Maffezini v. Kingdom of Spain and the ICSID Secretary-General's Screening Power

WHILST IT is a truism to state that arbitration requires consent, it has been established for some years that a claimant need not have a contractual relationship with the respondent to initiate arbitral proceedings. One well-known arbitrator referred to a new territory for international arbitration waiting to be discovered1 as a result of the ever increasing network of multilateral and bilateral investment treaties (BITs)2 and national investment laws pursuant to which an investor may initiate arbitral proceedings.3 Arbitration without privity has been confirmed in a number of ICSID decisions in recent years.4 The Report of the Executive Directors of the World Bank on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States stated in 1965: > a host State might in its investment promotion legislation offer to submit disputes arising under certain classes of investments to the jurisdiction of the Centre and the investor might give his consent thereto in writing. Consent to arbitration may therefore be by reference to investment laws and/or bilateral investment treaties. A whole new continent may now have been discovered following the decision of Emilio Augustin Maffezini v. Kingdom of Spain ,5 although it may be some considerable time before its contours are mapped and charted.6 The Maffezini decision confirms that as a result of a ‘most favoured nation’ (MFN) clause, a claimant has the right to rely on the terms of a consent to ICSID's jurisdiction contained in other BITs. It remains to be seen how the ‘gatekeeper’ of ICSID, the Secretary-General, will exercise his power to ‘screen’ requests pursuant to the ICSID Convention and ICSID's Additional Facility Rules based on an MFN clause. ICSID is a part of the International Bank for Reconstruction and Development (‘the World Bank’). The purpose of the …

International Law and Terrorism

What important developments have occurred in multilateral international treaties between the Convention for the Prevention and Punishment of Terrorism of 1937 and the Inter-American Convention Against Terrorism of 2002? This article answers this question as well as whether these laws have been an effective legal response in combating terrorism. After differentiating between comprehensive and sectoral conventions and between universal and regional conventions, the article comparatively analyzes them based on definitions of offenses, the extent of criminalization, exceptions concerning scope of application, measures to be taken by the states parties, obligatory and optional jurisdiction, obligations of states in the sphere of legal cooperation and assistance, rights of the offender, extradition, exceptions from extradition or legal assistance, and issues not covered by the conventions. Solutions proved to be the most effective against international terrorism and discrepancies and overlaps between the conventions are discussed.

The Avena Case in the International Court of Justice and the U.S. Response

I. Background The Vienna Convention on Consular Relations, a multilateral treaty to which the United States, Mexico, and 164 other States (countries) are parties, requires the competent authorities of each party to inform the consulate of the other party if the latter party’s national is arrested and requests that the consulate be notified. The Convention also requires the authorities to forward any communication the arrested person addresses to the consulate, and to inform the person concerned without delay of his or her right to communicate with the consulate. The consular authorities have the right to visit and correspond with that person and to arrange for his or her legal representation. Until the last few years, authorities in the United States frequently did not comply with these requirements, which apparently were little known in law enforcement circles or even among court-appointed defense lawyers. In scores of homicide cases, nationals of States parties to the Consular Convention were sentenced to death even though they had not been given timely notification of their right to communicate with their consulates. In the typical case, the court-appointed defense lawyer failed to raise the issue at the trial, and belatedly did so only on appeal or in a habeas corpus petition after conviction and sentencing. The courts denied relief, either on the ground that procedurally it was too late to raise the matter (the “procedural default rule”), or that the Consular Convention establishes rights only for the States parties to it and not for individuals who seek to enforce the Convention in U.S. courts. In separate proceedings brought over the last few years, Paraguay, Germany, and Mexico have challenged these U.S. practices in the International Court of Justice (ICJ).

The Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law

AbstractIntroductionThe European Convention on Human Rights and Biomedicine of 1997 (“Oviedo Convention“) is the best current example of how to promote the protection of human rights in the biomedical field at a transnational level. The importance of this instrument lies in the fact that it is the first comprehensive multilateral treaty addressing biomedical human rights issues. Certainly, some of the principles it contains were already included in more general terms in previous international human rights treaties, such as the International Covenant on Civil and Political Rights of 1966 and the European Convention on Human Rights of 1950 (e.g. the rights to life, to physical integrity and to privacy, the prohibition of inhuman or degrading treatment and of any form of discrimination). However, this is the first time that these rights have been developed and assembled in one single multilateral binding instrument entirely devoted to biomedical issues.The purpose of this paper is, first, to give an overview of the history of the Convention; second, to present its general characteristics; and finally to summarize its key provisions.

THE IMPORTANCE OF THE BTWC FOR AFRICA AND THE ROLE OF AFRICAN STATES IN MULTILATERAL DISARMAMENT INITIATIVES

Extracted from text ... COMMENTARY The Biological and Toxin Weapons Convention (BTWC) will celebrate the thirtieth anniversary of its entry into force on 26 March 2005. When opened for signature in 1972, it was hailed as the first multilateral disarmament treaty to ban the production and use of an entire category of weapons. Recent developments, such as the attempts by the Aum Shinrikyo to acquire and use biological weapons and the anthrax incidents in the United States, underscored the threat of biological weapons and the need to counter their use not only by traditional state actors but also by terrorists and other nonstate ..

An interesting discrepancy between the authentic texts of a multilateral treaty: Article 7 (3) of the United Nations Convention on the Law of the Sea

An interesting discrepancy between the authentic texts of a multilateral treaty: Article 7 (3) of the United Nations Convention on the Law of the Sea

Negotiating Multilateral Instruments Against Missile Proliferation

AbstractThe absence of a major multilateral treaty banning missiles is explained by the limited scope of the two main instruments against missile proliferation – the Missile Technology Control Regime (MTCR) and the Hague Code of Conduct against Ballistic Missile Proliferation (HCOC). In the MTCR's case, limiting the scope to supply-side technology controls facilitated progress during its negotiations. In the Hague Code, limiting the scope to transparency, and keeping out additional items such as incentives to renounce ballistic missiles and the topic of cruise missiles, made negotiations easier. The trade-off from a limited scope in both instruments is that there is still no significant worldwide treaty banning missiles.

The Growth of International Law between Globalization and the Great Power

International Law is not only growing fast, but is virtually exploding: between 1864 and 1919, an estimated 257 multilateral treaties were concluded, and from 1919 to 1971, 1090 entered into force. In August 2003, a total of 40,000 treaties (among them 2799 multilateral ones), were registered with the UN. The question of this agora, is, however, not only whether international law is changing in quantity, but whether the international legal system is changing “in nature”. The principal reason for such a change might be the termination of the bipolar world order with its balance of power between two rivaling Great Powers and the increasing contempt of international law by the remaining single Superpower, the United States. Although the international legal system has always been shaped and dominated by Great Powers, America’s current global supremacy constitutes, as US Foreign Policy Advisor Professor Zbigniew Brzezinski pointed out, a “hegemony of a new type”. Hegemony means, since Greek antiquity, the political phenomenon of leadership or predominance, which may or may not be legally to some extent

International law in world politics: an introduction

The Copenhagen Climate Change Conference. Iran's plans to build nuclear weapons. Ongoing armed conflict in Congo, Iraq, and Afghanistan. Debates about the responsibility to protect. In each of these headline events, the complex relationship of international law and world politics comes into play. The second edition of International Law in World Politics--thoroughly updated and now including a full chapter on the use of force--introduces the concepts, the rules, and the functioning of international law in a way that is accessible to students of political science. Shirley Scott covers such core topics as the nature of legal argument, the negotiation and implementation of multilateral treaties, and the place of both intergovernmental organizations and nonstate actors in the international legal system. Equally important, she connects the content of laws to current issues and problems, using case studies to bring the subject to life. The result is a rare text that effectively explains the role that international law plays in the changing arena of world politics. Writing an easily accessible but still comprehensive text on the role of international law in current world politics is not easy, yet it is exactly what Shirley Scott has accomplished with this excellent introductory book.--Hanne Hagtvedt Vik, Journal of Peace Research

Waiting for Godot: Sustainable development, international trade and governance in environmental policies

The current environmental crisis calls for a sustainable style of development and draws attention to a new ecological dimension in social life that poses hitherto unforeseen challenges to the social sciences and to the everyday concerns of citizens, governments and private interests. Consequently, it is appropriate to attempt a critical overview of governance issues around the formation and implementation of environmental policies designed under the framework of sustainable development. After a brief introduction on how global perceptions about sustainable development have evolved, this article subsequently focuses attention on the main thrust of the emerging international environmental regime, and the multilateral environmental treaties embodied in it. Specific governance issues pertaining to environmental policies are also critically reviewed, particularly interrelations with the trade regime. The article concludes by spelling out some comments on research issues for the future, with a view to charting the environmental governance agenda lying ahead of us.

The FCPA and the OECD Convention: Some Lessons from the U.S. Experience

Although corruption is ubiquitous, attitudes toward it differ among countries. The U.S. had been the only country, until 1997 OECD Convention, with an explicit extraterritorial anti-bribery law. The Foreign Corrupt Practices Act of 1977 employs a two-pronged approach to control the supply side of corruption: (1) anti-bribery provisions and (2) accounting (internal control) provisions. I offer indirect evidence that shows that the FCPA had limited success. The OECD Convention adopts the same two-pronged approach, but is likely to be more successful since it is a multilateral treaty: the signatory nations can effectively form a cartel to reduce the cost of doing business. As with any cartel, however, each multinational corporation has an incentive to deviate. I argue that the main lesson to be drawn from the U.S. experience is that we need, in addition to internal controls, stronger and more effective corporate governance within an appropriate regulatory framework.

Global Environmental Issues: Responses from Japan

The timing of the Japanese Government's acceptance of the United Nations multilateral treaties governing several environmental concerns indicates Japan's priorities: biodiversity, global warming, and depletion of the ozone layer. Banning transboundary movement of hazardous wastes is the least prioritized, as indicated by Japan's failure to accept the Ban Amendment to the Basel Convention. The Japanese Environment Agency's policy statements and budget allocations between 1985 and 2000, as well as other official statements and programs, likewise indicate the same priorities. Moreover, of the three priorities, global warming is the top.Japan, which has been looking for a niche in world leadership, has found it in global warming concerns. However, it would be hard for it to maintain a leadership role in global environmental concerns if it would not be able to play a proactive role in the more technologically, economically and politically difficult task of banning transboundary movement of hazardous wastes.

Penaatan Atas Perjanjian Multilateral di Bidang Lingkungan Hidup

Multilateral treaty in environmental area is one of the international treaty that defined in Convention on the Law of the Treaties, Vienna, 1969 as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. However, international environmental law is tending to be considered as “soft law” rather than “hard law” because its compliance approaches. This article will discuss about the compliance measure from the international point of view because international compliance is based on the balance of advantages and consequences of a state should it participate in MEAs.

La brevetabilité dans les récents traités de libre-échange américains

INTERNATIONAL PATENT REGIME IN RECENT FREE TRADE US INTERNATIONAL AGREEMENTS The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization (WTO) is no longer the « new frontier » of the international patent regime. Indeed, the United States and other developed countries negotiate bilateral « TRIPs-plus » treaties with developing countries. Arguably, bilateralism allows to bypass the dead-end debates at the TRIPs Council and to build alliances for upcoming multilateral negotiations at the World Intellectual Property Organization. This article compares patentability provisions of the recentlyconcluded U.S. Free Trade Agreements with the TRIPs Agreement. Although most of the provisions of the TRIPs Agreement are integrated in bilateral treaties, we identify five significant changes : 1) bilateral treaties provide a 12 months grace period to inventors ; 2) the industrial application requirement is defined has a « specific, substantial, and credible utility » ; 3) a ceiling to the disclosure requirement is introduced ; 4) the plant protection regime is reinforced ; 5) the non-discrimination rule is omitted. Our comparative analysis shows that bilateralism allows the US to consolidate existing multilateral treaties, such as the TRIPs Agreement and the UPOV Convention, and to fortify its negotiating position for future multilateral treaties, such as the WIPO Substantive Patent Law Treaty. The new features of bilateral treaties indicate that the international patent regime is still oriented through the US patent law model.