International Law Regime Research Articles

Armed Non-State Actors and State Failure: Failing International Law or Failure of International Law

Armed Non-State actors are groups involved in the use of force against states or within themselves under several guises including the right to self-determination. The activities of such groups have over the years led to the failure of several states across the globe, which on the other hand results in dire human and material consequences. As a result, the question has often been asked as to why such armed non-state actors thrive especially in the 21st century, notwithstanding the prominence of international law. Is it that international law has failed in regulating such groups, or that the regulation has in it some inherent weaknesses which encourage their proliferation. This paper examines the role of non-state actors in state failure with reference to a few selected cases, to see how activities presented as emancipatory lead to human devastation. It also explores the international legal regime on non-state actors with a view to see if it encourages the emergence of violent groups in the form of national liberation movements. Using doctrinal methodology, the paper analyses both primary and secondary sources of data, relevant literature, and case law on the topic. It finds that the proliferation of the activities of these groups who destroy the essence of statehood, may not be unconnected with the contemporary reality of the legal regime in international law.

Protected Groups in Refugee Law and International Law

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly 70 years since its inception, although the political and social context that gave rise to the Refugee Convention has changed. This article examines how ‘membership in a particular social group’ (“MPSG”) has been interpreted, then surveys international human rights law, transnational criminal law, international humanitarian law, and international criminal law instruments to determine whether MPSG can encompass the broader protections afforded under other international law regimes. It concludes that the enumerated grounds are largely consistent with other instruments and protects, or at least has the potential to protect, many of the other categories through MPSG. However, as this ground is subject to domestic judicial interpretation and various analytical approaches taken in different countries, protection could be enhanced by amending the Refugee Convention to explicitly include additional protected groups from these other areas of international law, specifically international human rights law and international criminal law.

Stabilizing 'Pillar One': Corporate Profit Reallocation in an Uncertain Environment

This paper is about how the world reestablishes international tax order. The paper focuses on the OECD’s work on profit reallocation and asks whether this multilateral effort can be successful in stabilizing the international tax system. The analysis centers on the current leading concepts for reallocating profit among jurisdictions under what is known as “Pillar One” of the OECD work programme. To analyze whether any Pillar One concept can be turned into a stable multilateral regime, it is necessary to specify certain elements of what a proposal to reallocate profits might entail. Accordingly, this paper sets out two strawman proposals. One strawman uses a “market intangibles” concept that explicitly separates routine and residual returns. The other strawman may reach a similar result, but does not explicitly attempt to separate routine and residual returns. Instead, in current OECD parlance, it might be described as a “distribution-based” approach. The paper asks whether either of the two strawmen could be agreed and stabilized multilaterally given the tools of modern international tax diplomacy. I conclude that the current procedural and institutional architecture for cementing international tax relations among states is inadequate to stabilize either of the strawmen. Nevertheless, with certain changes, reestablishing order may be possible. Moreover, I conclude that there are six key structural decisions that impact the ability to stabilize the international tax architecture in any Pillar One approach, and that these decisions are likely to be implicitly made in the course of choosing a political direction for Pillar One work in 2019. The choices made with regard to these decisions determine whether or not it will be possible to stabilize Pillar One. Even if good resolutions are reached along these six dimensions, there are only a couple paths to stabilize the system. One path would involve using every tool in the current OECD arsenal in new and more expansive ways, and then substantially depoliticize international tax matters and remove G20 involvement, such that logics of appropriateness developed among tax administrators isolated from political pressures and acting through transnational networks could lend stability to a new set of rules and principles. Even then, only a few Pillar One compromises could be stabilized this way. The alternative path, which could stabilize a broader range of proposals, requires formalizing the new regime in international law through a true multilateral treaty.

Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards

Commercial space transportation (CST) will occur in the foreseeable future. After the success of Virgin Galactic's first suborbital commercial human spaceflight in 2004, many believed that our generation will explore another frontier of technology. Despite technological advancements, however, the international law currently in place is not prepared to regulate and secure the safety of CST including human spaceflights. Previous legal studies mainly focused on finding ways to accommodate CST under existing international laws, air law, or space law regime. Nevertheless, more than fifty years of legal discussion have yet to yield a decisive solution. Against the odds, CST will commence its business sooner or later. While national laws would be sufficient in many CST operations, some operations (e.g., international flight) would require international rules to secure a safe CST operation akin to what the aviation community developed for international air transport. That mechanism is encompassed in the technical standards created by the International Civil Aviation Organization. In this respect, this study aims to analyze a way to generate internationally harmonized technical standards on CST activities, with or without achieving an international law for CST. First, the article analyzes past legal discussion to understand the landscape of future aerospace activities. Then, the study reviews the history of the international aviation legal regime to find the implications of creating internationally harmonized technical standards for CSTs. The study suggests to the international community first, to forge a common ground across countries and second, that qualitative (not quantitative) international technical standards should arise based on this mutual understanding.

Chapter 5. State responsibility in public international law, avoidance strategies and future trends.

Chapter 5. State responsibility in public international law, avoidance strategies and future trendsThe international climate regime has not been able to prevent a rise in temperatures that is already being felt and is likely to increase in the future. Therefore, the increasing impacts of climate change lead to questions about their compensation. Although states have developed avoidance strategies, liability issues are arising and will arise with greater acuity, including at the interstate level. In this context, the clarification of the international responsibility of the State in this matter and, hence, of the risks it runs, is important.

The Question of Applicability: EU Law or International Law in Nord Stream 2

Seeing that a bilateral agreement between the EU and Russia on the Nord Stream 2 pipeline project is highly unlikely to be concluded due to political considerations, this paper enquires which existing legal regime is applicable to the governing of this pipeline, especially in order to guarantee solidarity and security within the EU energy market through third-party access and unbundling requirements. The question is whether EU law in general (which the Council denies) or international law applies, and if the latter, which specific regime(s): the Energy Charter Treaty, wto law, the law of the sea, or a combination of regimes? Lastly, this paper also investigates whether and to what extent these international law regimes might guarantee the same solidarity and energy security standards as EU law.

WTO Dispute Settlement, Investor-State Arbitration and Investment Courts: Exploring Themes of State Power, Adjudication & Legitimacy

U.S. assertion of political power in the World Trade Organization (WTO)’s appointment process reminds us of the tenuous balance that exists between state power, adjudication and legitimacy in WTO dispute settlement. Even more fundamentally, it prompts questions about whether reformation of investor-state dispute settlement based on the WTO’s dispute settlement mechanism will solve the legitimacy crisis (real or perceived) that currently threatens the international investment law regime. To address that question this paper explores the contours of state power and adjudication in the dispute settlement mechanisms underpinning the international trade and international investment law regimes. An overview of the historical development of dispute settlement mechanisms in each of these regimes reveals the existence of a long-standing tension between adjudication and sovereign regulatory authority, with the legitimacy of each regime coming under question. Responses to these so-called legitimacy crises vary between the international trade and international investment law regimes and, to some extent, depend on the power states have to respond to such crises. Whether innovations, such as the investment court established in the Comprehensive Economic Trade Agreement between Canada and the European Union, will solve international investment law’s legitimacy crisis remains an open question.

The Multilateral Investment Court: A Stumbling Block for Comprehensive and Sustainable Investment Law Reform

For the last years, reforming the international investment law regime has been a key priority of the trade agenda of the European Commission. Two important decisions in March 2018 can either be seen as a stepping stone or stumbling block in this regard. On 20 March 2018, the Council authorised negotiations for a treaty establishing a multilateral investment court (MIC). This proposal was yet the latest step in a series of activities aimed at replacing the traditional arbitration system of dispute settlement in investment treaties (Investor-State Dispute Settlement, ISDS) with a treaty-based MIC. The latest development concerns the multilateralization of the Investment Court System leading to a MIC. After lobbying for this approach in various intergovernmental fora, the Commission developed a more concrete proposal over the course of 2016 and the first half of 2017. Last year, the ISDS debate moved into the auspices of UNCITRAL Working Group III. Neither the negotiation mandate nor the UNCITRAL mandate touch upon substantive investment standards or refer to the current debates and negotiations on business and human rights. The negotiations will therefore not address any substantive elements of investment treaties. In all likelihood, they will also not address procedural issues such as counterclaims, participation rights of affected stakeholders, presumption of responsibility or burden of proof. The second important decision was taken two weeks earlier by the Court of Justice of the European Union (CJEU) on 6 March 2018. In its ruling in the case C-284/16 Achmea, the CJEU clarified that investment agreements between EU Member States (so-called intra-EU BITs) that have an ISDS clause violate EU law. It is not quite clear whether the CJEU would also transfer its view to other agreements such as CETA or the planned treaty for a MIC. However, the ruling indicates that any investment agreement providing for dispute settlement procedures in which EU law can be applied or interpreted and which does not ensure a review of this interpretation by the CJEU is in breach of EU law.

The Interplay Between the Duty Not to Cause Significant Harm and Equitable and Reasonable Utilization Principle

States sharing freshwater resources have developed basic rules governing the use of these resources through their practice over many years. Some of the rules form part of customary international law, which is a body of unwritten law binding on all states. Countries sharing freshwater may also enter into treaties applying and adjusting rules of customary law to suit their specific situations with regard to the watercourses they share.' In contemporary state and institutional practice of none state actors, two doctrines have attained supremacy. The first entitles riparian states to exploit international watercourses in an equitable and reasonable manner. The second principle cautions states to take appropriate measures in the utilization of trans-boundary Rivers such that significant harm to the share of other watercourse states is averted. Today these two principles are indisputably regarded as cornerstones of the regime of international watercourses law. This note tries to look in to the duty not to cause significant harm and its interplay with the equitable and reasonable utilizations rule. The presentation will also explore lingering issues of preeminence between the two principles which may be crucial in understanding the full scope of riparian rights and obligations in the international water basin.

The International Law Regime of Resolving Sovereign Disputes in the South China Sea: A Case Study of Joint Development Arrangement in the Tonkin Gulf

The International Law Regime of Resolving Sovereign Disputes in the South China Sea: A Case Study of Joint Development Arrangement in the Tonkin Gulf

Reparative approach Towards victims of armed Conflict: global experiences and lessons for india

In recent years, relentless efforts have been made worldwide for repairing the past harms done to victims of armed conflict. There has been a paradigm shift in international human rights law to addressing the victims’ need for reparation rather than emphasizing punishment for the perpetrators. A rights-based approach has been adopted towards making amends for the harm caused to victims in the past. Reparation is such a rightsbased approach, a diverse complementary form of justice to restore the life of the victims/survivors by means of restitution, compensation, rehabilitation, satisfaction and guarantee of non-recurrence of the violations upon the victims. Effective and inclusive response to violations during armed conflict and addressing those wrongs by way of reparation has become a priority within the international community to sustain peace and development in conflict-ridden countries. India, over the last few decades, has faced persistent violence perpetrated through armed conflict in regions such as Jammu and Kashmir as well as the North East. The lives of common people have been unsettled as a result of incessant killings, rapes and other brutalities. This article explores the development of reparation in the regime of international law and its implication for the victims of armed conflict. It underlines the initiatives of countries emerging from armed conflict in addressing the plight of victims by means of a reparative approach and argues that India needs to adopt a framework to reach out to those whose lives have been destroyed as the result of such violence and provide necessary reparation to them.

Reasons not to exit? A survey of the effectiveness and spillover effects of international investment arbitration

One of the most important characteristics of an investment treaty is that often it grants aggrieved investors access to international arbitration. This arbitration system does not require a foreign investor to petition his home state in order to bring claims against a host state, and provides an alternative to resolving disputes in the host state’s local court. Although international investment arbitration is beneficial for countries in terms of foreign direct investment, it has been accused of not being transparent or effective especially in relation to environment or public health cases. Some countries expressed their discomfort with the current international investment law regime by radical exit solutions such as denunciation of the Convention on the settlement of investment disputes between states and nationals of other states, rejection of investor-state dispute settlement provisions and unilateral denunciation of investment treaties. Based on a vast law, economics and political science literature, this paper proposes arguments to examine these criticisms. First, it is argued that investor-state arbitration is currently a concern in both developing and developed countries. Second, although assessing the spillover effects of arbitration outcomes on some dimensions of public interests such as the environment or public health is not straightforward, the uncertainty that leads to arbitrariness and sometimes inconsistencies in arbitral decision-making exists and needs to be properly identified. Finally, this article argues that exit is not efficient at either the national or international levels, and that it is possible for countries to adapt the current regime to new situations without wholesale exit.

Pursuing and Reimagining the International Rule of Law Through International Investment Law

In challenging times for international law, the international rule of law as a connecting thread of the global legal order is a particularly salient topic. By providing a working understanding of the content and contexts of the international rule of law, and by taking the regime of international investment law as a case study, I argue that assessing ‘rise’ or ‘decline’ motions in this sphere warrants a nuanced approach that should recognize parallel positive and negative developments. Whilst prominent procedural and substantive aspects of international investment law strongly align with the international rule of law requirements, numerous challenges threaten the future existence of the regime and the appeal of international rule of law more broadly. At the same time, opportunities exist to adapt the substantive decision-making processes in investor-state disputes so to pursue parallel goals of enhancing the rule of law at both international and national levels. Through recognizing the specificities of interaction between the international and national spheres, arbitrators can reinvigorate the legitimacy of the international rule of law through international investment law—benefitting thus the future of both.

The Demise of Multilateralism and the Rise of Sovereignty?

International agreements are negotiated by sovereign states and by signing these agreements they agree to be bound by them. States know this when they conclude agreements but sometimes the end-effect and implications of these limitations on their capacity to act internally, is only realised much later. In international trade, comparative advantage is the economic theory underlying liberal trade whereas, in comparison in international law the organising principle is the sovereignty of states. These two concepts are mutually exclusive. In terms of the sovereignty principle, states are meant to follow and protect the national interest, this is not allowed in the international trading system where equal treatment is required between nationals and foreigners and national products and foreign products. Thus, the two are at variance with one another. Pursuing national interest can be seen to amount to protectionism and within the international trade law regime, that is not allowed. The way in which the WTO is functioning, has put elements of international law and economics in tension and if looked at from the political level, has also removed the voting power of the populace. There seems to be a new realisation of the importance of one’s sovereignty and that the power to be able to make decisions should lie with the sovereign state and not with a perceived far-removed organisation. It is argued that the idea of a unified global order and super globalisation cannot co-exist with the existence of sovereign states and as a result other means of co-existence are in the process of being formed and this seems to be in the form of regional and mega-regional agreements, thus creating “micro-constitutions”.

Introduction to the Universal Declaration of Human Rights

The debate on the existence of universal human rights is always alive and involves not only the international law regime but also the enforcement of national laws as well as the relationship between cultural diversity and protection of human rights. It is a fact that not all the principles on human rights included in the major conventions and international acts on human rights come under the same regime, and so the idea of a distinction between conditional human rights rules and absolute human rights rules is not alien to the international mechanism sal, and for this reason its affirmation depends on the degree of acceptance of its principles. This acceptance has so far been much wider than one could imagine. Although it originally represented the point of view mainly of Western countries, the Universal Declaration has been successful as it immediately sought to give precise content to the commitments solemnly made by State with the approval of the United Nations Charter.

The Human Right to Water from the Universal Declaration of Human Rights to the New Agenda for Sustainable Development

The article explores the evolutionary path that led to the emergence of the right to water as human rights, since the Universal Declaration of Human Rights till to its inclusion in the 2030 Agenda for Sustainable Development. In particular, on the one hand the paper analyses the definition and the content of the right to water, as well as the obligations stemming for contracting States to the international treaties recognizing this right. On the other one, it focuses specifically on how to ensure an effective guarantee of the right to water. Finally, the analysis assesses the contribution of Goal 6, included in 2030 Agenda for Sustainable Development, to the international water law regime.

Space Debris Mounting Global Menace Legal Issues Pertaining to Space Debris Removal: Ought to Revamp Existing Space Law Regime

Space debris is global mounting ultimatum to the enduring maintainability of the Outer Space activities and it ought to be deal in the very beginning. Otherwise, it will be too late. From the last couple of years, the rate at which the space activities have, resulted in the production of debris at very threshold position in a linear fashion. Ultimately, it has become the rendezvous of space debris general place. From couples of years ago, some incidents of collisions have enhanced the space debris accumulation, now crowded the corridor of earth orbit which constitutes the most serious pollutant of the near-earth space environment. Innovations in space applications have enhanced not only our awareness about universe but also daily lives world widely. Actually, the space treaties law neither explicitly forbids the production of space debris nor levies responsibility on the states to remove space debris. Because the absence of definition of space debris reveals the unending ambiguity between space debris and space object. There is no any legal procedure and mechanism available in existing space law regime to remove the space debris. Furthermore, who has the authority to take decision for the removal of space debris from the outer space? International space law does not permit interruption with space objects without the preceding approval from the launching State. This paper focuses on the legal and organizational challenges suggesting to revamp the fuzzy prevailing international space law regime to encounter incoming legal aspects.

Najnowsza polityka kosmiczna Stanów Zjednoczonych w świetle reguł publicznego prawa międzynarodowego

Na całość regulacji dotyczących przestrzeni kosmicznej składają się nie tylko traktaty, lecz również normy o charakterze krajowym wprowadzone celem zapewnienia zgodności działań państw z prawem międzynarodowym publicznym. Niniejsze opracowanie służy analizie najnowszych propozycji dotyczących amerykańskiej legislacji kosmicznej, w świetle jej zgodności z normami traktatowymi. Szczególną uwagę poświęcono Commercial Space Launch Competitiveness Act, projektowi American Space Commerce Free Enterprise Act jak również ostatnim doniesieniom administracji prezydenta Donalda Trumpa o możliwości utworzenia odrębnej gałęzi sił zbrojnych, poświęconej w całości militarnym aspektom wykorzystania przestrzeni kosmicznej.

International Law and Corporate Social Responsibility: The Potential of OECD’s MNE Guidelines for Advancing Social Benefits in the Context of Natural Resource Exploitation in the Arctic, with Particular Regard to Greenland

This article takes point of departure in the case of Greenland to examine how public authorities in Arctic societies may deploy the ideas inherent in Corporate Social Responsibility (CSR) to engage multinational corporations or national companies in contributing to addressing societal needs. Drawing on the emergent international law regime on CSR, it discusses the role of OECD’s Guidelines for Multinational Enterprises to encourage companies explicitly or implicitly to contribute to societal needs. The discussion points to similarities between social and environmental impact assessment and the risk-based due diligence approach recommended by OECD’s Guidelines. It also points to similarities between Impact Benefit Agreements and the Guidelines’ recommendations for companies’ contributions to host societies through employment of local labour and transfer of skills. This focus fits closely with public policy objectives expressed by Greenland’s Self-Government in regard to mining and underscores the pertinence for Greenland to consider acceding to the Guidelines.

Editorial: The Relationship between International Humanitarian Law and General International Law

As one of the oldest substantive areas of regulation under international law, international humanitarian law (IHL) has played a prominent role in many of the key developments in international law. As public international law expanded, particularly in the latter part of the twentieth century, however, this role of IHL necessarily diminished, at least relative to other specialized regimes in international law. In addition, growing specialization has led to a certain isolation of IHL from public international law more generally. This special issue of the Journal of Conflict & Security Law examines this phenomenon and considers the relationship between IHL and general international law (understood as those rules of international law that apply across specialist regimes, such as rules on law creation, treaty interpretation and State responsibility). In considering how a range of general international law issues regarding sources, State responsibility and structural concepts such as State sovereignty arise in the specific field of IHL, a rich and complex relationship between IHL and general international law is revealed. The articles in this special issue demonstrate that this relationship varies considerably depending on the particular focus, from topics on which IHL and general international law diverge fundamentally to those in which IHL has played a key role in the development of certain general international law concepts.