International Law Regime Research Articles

Peacetime Maritime Law Enforcement by Warships

ABSTRACT The scope and methods of maritime law enforcement by warships in peacetime are evolving, triggering international armed conflicts. A core issue is how to distinguish between law enforcement activities and military operations at sea. The construction of an international law regime for peacetime maritime law enforcement by warships will help to reduce the incidence of armed conflicts. This is consistent with the need for a strict interpretation of the principle of prohibiting the threat or use of force under the United Nations Charter. Based on the principles of prohibiting the use of force, the peaceful use of the seas and considerations of good faith, it is possible to establish a stable international legal system for maritime law enforcement by warships. The system would be based on the United Nations Convention on the Law of the Sea (UNCLOS) and would operate primarily through implementing agreements as its main model.

PROTECTION OF FOREIGN INVESTMENT IN INDIA: A HISTORICAL ANALYSIS

International investment agreements are the tools of international law by which two or more countries give reciprocal assurance for the protection of foreign investment in their countries. Long before there was no such regime of international property protection. In colonial time the foreign property was subject of the law of foreigner. At that time there was no certainty in international property regime. India had paid heavy price for the same. This paper tries to map out the whole journey of development of international property protection in India. In the first part paper tries to find out the international rule for the protection of foreign property in India. Unfortunately there was no such universal regime prevalent in any part of the world for the protection of foreign property. Second part deals with the development of International property protection in in post-colonial period. In this period newly independent colonies did not trust the foreigners due to its chequered history. Third part deals with the period after liberalization, privatisation and globalisation. In this period India had embraced the international investment law regime as an overall strategy of liberalization, privatisation and globalisation. In this period India had signed most of its International investment agreements. However, in this period India also faced with multiple investment claims by many foreign investors. In wake of these investment claims India had recently spelled out its new Model BIT and terminated its most of the International investment agreements. And finally concludes that there is some problem with the new Model BIT due to which Indian government still facing difficulty in inking new international investment agreements with the countries with whom India has had deep economic ties.

Cosmopolitan Pariahs: The Moral Rationale for Exclusion under Article 1F

Abstract This article reconstructs the moral rationale for exclusion under article 1F of the 1951 Convention relating to the Status of Refugees. The idea that certain refugees may be ‘undeserving’ of refugee protection because of past criminality is incompatible with a reading of the international refugee law regime as a human rights regime. Instead, the best reconstruction of exclusion’s moral rationale is to construe it as a non-punitive form of blame, under which the international community withdraws the beneficence and goodwill necessary to enter into thicker relations of shared residence and potential citizenship. Some troubling implications of this construal of exclusion are briefly explored.

Principles for embedded emissions accounting to support trade-related climate policy

ABSTRACT Climate policy – though shaped by international regimes – has traditionally been heavily domestic in practice. Accordingly, public emissions accounting frameworks have been designed to support policies targeting emitting processes within the territory, and to facilitate the production of National Accounts. Now, a combination of emissions leakage, competitiveness, and both investor and consumer concerns are driving the rapid emergence of policies targeting emissions embodied in traded products. To support these product-targeted policies, governments are investing in the development of public embedded emissions accounting frameworks (EEFs). While EEFs as an information instrument have enormous potential to support the transition to a net-zero global economy, they equally have the potential to inhibit trade, slow the transition, and have a disproportionate impact on developing countries – both through their design, and through potential incompatibilities between accounting developed in different jurisdictions. This article contributes to addressing these challenges by describing the minimum viable set of principles for an emissions accounting information instrument to be compatible with both international trade law and climate change mitigation regimes. To identify these design principles, our method is a systematic review of carbon accounting and trade law literature. Noting the prominent place of principles in guidelines for carbon accounting practice, we additionally extract principles identified in leading emissions accounting guidelines. Theory-based identification and analysis of these systematically extracted principles is used to develop the synthesized set of key principles for the design of public embedded emissions accounting schemes for traded products. Public agencies developing approaches for product emissions accounting, such as to meet requirements for carbon border adjustment mechanisms, could use these principles to guide design and negotiation.

Towards a Non-Use Regime on Solar Geoengineering: Lessons from International Law and Governance

AbstractIn recent years, some scientists have called for research into and potential development of ‘solar geoengineering’ technologies as an option to counter global warming. Solar geoengineering refers to a set of speculative techniques to reflect some incoming sunlight back into space, for example, by continuously spraying reflective sulphur aerosols into the stratosphere over several generations. Because of the significant ecological, social, and political risks posed by such technologies, many scholars and civil society organizations have urged governments to take action to prohibit the development and deployment of solar geoengineering techniques. In this article we take such calls for a prohibitory or a non-use regime on solar geoengineering as a starting point to examine existing international law and governance precedents that could guide the development of such a regime. The precedents we examine include international prohibitory and restrictive regimes that impose bans or restrictions on chemical weapons, biological weapons, weather modification technologies, anti-personnel landmines, substances that deplete the ozone layer, trade in hazardous wastes, deep seabed mining, and mining in Antarctica. We also assess emerging norms and soft law in anticipatory governance of novel technologies, such as human cloning and gene editing. While there is no blueprint for a solar geoengineering non-use regime in international law, our analysis points to numerous specific elements on which governments could draw to constrain or impose an outright prohibition on the development of technologies for solar geoengineering, should they opt to do so.

Taking Stock of the Scholarship on the Relationship between International Investment Law and the Need for Raised Climate Ambition

Abstract Increasingly dire warnings about the climate crisis mean that it is more urgent than ever that different legal regimes, including international investment law, are aligned with climate objectives and not implemented in discord with climate solutions. Many works have been produced over the last twenty years which examine whether the norms underlying climate law and international investment law necessarily conflict or can be reconciled. These works reflect deeply contested views amongst scholars as to whether regulation aimed at ensuring climate ambition can, or is likely to, be adequately safeguarded by the international investment law regime that is designed to provide conditions of stability for investors – including those that are large greenhouse gas emitters. This article provides an overview of the different perspectives that have been offered on the relationship between climate change law and international investment law in respect of three role-players – namely, arbitrators, civil society, and states. It concludes by offering tentative thoughts on the course that the interaction between the two regimes may take in the future.

Nuclear Threats Under International Law Part II: Applying the Law

ABSTRACT Throughout the nuclear age, states have made a wide array of threats to use nuclear weapons. There is, however, often little clarity as to whether such threats are legal or illegal under international law. This article is the second in a two-part series, and in this piece we examine how two specific sets of international legal rules apply to select examples of past nuclear threats. In particular we analyse the legality of certain threats under the jus ad bellum regime of international law that regulates recourse to war between states, before turning to consider specific threat examples in the context of the jus in bello regime, which applies to regulate the conduct of hostilities during an armed conflict. Throughout the article, we identify a number of complexities and deficiencies in the ways that the rules of jus ad bellum and jus in bello apply to nuclear threats in practice.

The EU private international law framework for civil disputes concerning credit ratings: Exploring the status quo and prospects of reform

This article addresses the EU private international law framework for cross-border disputes concerning credit ratings. It argues that investors harmed by faulty ratings face considerable challenges when enforcing claims against credit rating agencies. These challenges arise not only due to the high standard of proof for damages claims and additional barriers rooted in substantive law but also from the limited territorial reach of the common EU civil liability regime of Article 35a of the amended Regulation (EC) No 1060/2009. Additionally, uncertainties concerning the determination of the concurrently applicable national law and the lack of unified European cross-border collective redress mechanisms in the area of capital markets law compound the problem. Against this background, this article discusses the options for reforming the existing private international law regime to enhance investors’ access to justice in disputes with CRAs.

Legitimacy of power exercised by FATF under international law

Purpose This study aims to focus on the legal status of the Financial Action Task Force (FATF) regulatory spread in spite of its limited membership in international law. This is conducted by examining the regime of the FATF with the normative regime of public international law and trying to identify common grounds and conflicts between the two. Design/methodology/approach This study adopted an exploratory approach involving a thorough examination and analysis of accredited text, command papers and reports, archival materials, national obligations, websites as well as other documentary evidence. Findings This research gives an empirical determinant of compliance behaviour in response to FATF regulatory standards and the interplay of international law. Research limitations/implications The findings here are not exhaustive and could be approached from other perspectives. Researchers are therefore encouraged to engage by testing the findings further, as this is only a blueprint for further research. Practical implications This study provides implications for the need to open up the current membership of the FATF, as it appears discriminatory in nature and could inhibit effective compliance with its regulatory standards. Social implications FATF regulatory standards do not just revolve around its members and rule-takers but also affect unintended and vulnerable people who were never in contemplation when these regulations were debated without a global consensus. Originality/value The main aim of this study is to advocate for a rethink of FATF’s regulatory strategy by ensuring that its operations are more inclusive, where jurisdictions can participate as members, creating a sense of belonging and commitment in the fight against money laundering.

Defining Indigenous in Indonesia and Its Applicability to the International Legal Framework on Indigenous People’s Rights

This paper aims to analyse the concept of indigenous peoples in Indonesia and examines whether the concept is appropriate with an international legal framework. Analysing the concept is essential to legitimising indigenous rights under the international law regime. The discourse on indigenous in Indonesia emerged after the government rejected an international treaty on indigenous rights and was reluctant to adopt the UNDRIP into their national law. The government opposes this by arguing that the concept of indigenous peoples under the international legal framework is inappropriate for the Indonesian context. Consequently, indigenous peoples in Indonesia do not benefit from international norms that have recognised and protected their rights globally. This paper found that the concept of indigenous peoples in Indonesia has similarities and is appropriate to the international instrument (ILO169 and UNDRIP). Thus, ratifying the ILO treaty or adopting the UNDRIP into national law will benefit the indigenous in protecting their fundamental rights, including their collective rights to traditional lands under international norms.

Sovereignty or State Responsibility? Expropriation and the Right to Regulate in International Law on Foreign Investment

A state is entitled to be bound by investment agreements, including expropriating alien property on its territory. In international law, both represent the state’s sovereign principle within the boundaries of territorial integrity. Expropriation and the right to regulate are usually included in investment agreements as part of the substantive rules. This study uses a normative juridical approach. This approach is carried out by examining the library materials, which are secondary data; especially the principles and norms of law. While the aim of this research is to examine the legal aspects of several key concepts within the international investment law regime—the right to regulate and expropriation, both in terms of its regulation and implementation, in order to find best practices. Expropriation and the right to regulate are essentially like two sides of the same coin. This is because lawful expropriation implies state obligations (compensation), whereas unlawful expropriation implies state responsibilities (restitution or reparations). Meanwhile, the right to regulate (police powers), which is based on the concept of state sovereignty, does not. Lawful expropriation is defined as the state measures carried out with the due process of law, in a non-discriminatory manner, for the purpose of the public interest and is accompanied by the payment of compensation. In terms of expropriation, the right to regulate can be regarded as a form of lawful expropriation that does not necessitate compensation.
 Keywords: international investment law, expropriation, the right to regulate

Increasing the safeguarding of protected areas threatened by warfare through international environmental law

AbstractVulnerable ecological areas are often seriously impacted by armed conflicts. In theory, these areas could benefit from the safeguards offered by the international humanitarian law (IHL) regimes of “demilitarized zones” and “undefended localities”, but in practice, these regimes – which are designed to protect human beings from the violence of hostilities, and whose application entirely depends on the goodwill of belligerents – are rarely triggered to protect the environment as such. However, international environmental law (IEL) contains a rich and diversified normative framework which organizes the establishment and management of areas of major ecological importance. While this framework has not primarily been conceived to apply to war-related situations, it could nonetheless play a substantive role in strengthening the IHL normative regimes in two respects. Firstly, it could provide interpretative guidance for these regimes so that they can be oriented towards more “ecocentric” purposes and can be read in accordance with the most advanced IEL standards and mechanisms governing biodiversity hotspots (the “environmentalization” of IHL). Secondly, IEL norms and practices could directly apply during warfare and thus complement IHL in many respects. That said, the co-application of IEL and IHL raises difficult issues of compatibility between these regimes, requiring inter alia that the IEL framework governing protected areas be adapted to the needs and specificities of armed conflicts (the “humanitarization” of IEL).

Conceptualising sustainability in outer space resource utilisation

ABSTRACT This article examines the meaning of the concept of sustainability with respect to space activities, with specific emphasis on the extraction and utilisation of space resources. In particular, the article explores the legal principles that currently regulate and are proposed to regulate space resource activities and how these relate to sustainability as a way of developing our general understanding of sustainability in space. As an Artemis Accords participant, Australia is engaged in international discussions regarding space resource utilisation. Australia will have to consider how it will regulate space resource activities undertaken by Australians. It concludes that the current international space law regime must evolve to ensure that all space activities, including space resource activities, are undertaken in a sustainable manner.

AN EMERGENT PLANETARY HEALTH LAW

AbstractThe health of the planet and its life forms are under threat from anthropogenic climate change, pollution and biodiversity loss, and the extreme weather events, heatwaves and wildfires that accompany them. The burgeoning field of planetary health studies the interplay between humanity and the Earth's biosphere and ecosystems on which human health depends. Scholarship on law from a planetary health vantage point remains scarce. This article fills this gap by delineating the conceptual building blocks of a planetary health law, which, in its latent form, is dispersed across various hard and soft sources of international environmental law and global health law that converge on the right to a healthy environment, and, to a lesser extent, rights of nature emerging in various domestic jurisdictions. It elucidates how the fragmented regimes of international environmental and global health law could be developed in more coherent ways, driven by an overarching concern for the integrity of the planetary foundations of life.

International Investment Law Reforms and the Draft Business and Human Rights Treaty: The More Things Change, the More They Remain the Same?

Abstract Foreign investors enjoy the best of both worlds, often to the detriment of local communities, indigenous groups and other rightsholders who suffer violations in their wake. Such investors operate transnationally and access vast amounts of resources in host States around the world enjoying substantial rights secured through numerous trade and investment agreements while their human rights and other obligations remain less clear and more difficult to enforce. Given the relatively undertheorized interaction between efforts to come up with a binding treaty within the regime of business and human rights (BHR) and the reforms currently underway in the regime of international investment law (IIL), this contribution argues that despite reforms in IIL and progress towards a BHR treaty, rightsholders are likely to remain under protected in reality.

International Law’s Specialised Regime and Normative Conflict: A Reflection on International Criminal Law

In the international legal system, there exist fields of law that are characteristically specialised than the general sphere of international law. The term ‘special’, ‘specialised’ or ‘self-contained’ regime will be revisited in the present article vis-à-vis possible norms that conflict in the international legal arena. International criminal law, a discrete branch of international law will be thoroughly discussed as to reveal its nature as one of international law’s special regimes that may arguably contribute to the issue of normative conflict, and further, a problem of legal fragmentation. The concept of legal fragmentation will thus be highlighted as linked to international law’s normative conflicts. Considering that international criminal law is potentially a special regime of international law, one of its codified rules seems to have led to an emerged normative conflict involving the legal interaction between the Rome Statute of the International Criminal Court 1998’s treaty-based rule, and the international customary law rule. The severity of a legal conflict not only impacts the treaty law and customary law areas of international law but to a greater extent also undermines the coherence of the international legal system as a whole. Therefore, this article aims to analyse and expound on the apparent normative conflict of international law character that needs to be addressed, especially by the International Criminal Court being one of the prominent international judicial organs. Supposedly, when a normative conflict becomes severe, the issue of fragmentation of international law looms out and effective determination of related conflicting norms is indeed appealing.

Treaty influencers: a computational analysis of the development of international investment law

ABSTRACT This article uses computational methods to analyse the development of the international investment law regime, seeking to understand how, when, and by whom change in treaty language occurs. The study uses a novel computational method to explore the influence of different states on the language of international investment treaties and the spread of language patterns. The analysis reveals a hegemony of Western European, rather than North American influence, and further highlights a clear early mover advantage for obtaining language spread. The article discusses the implications of these findings for the investment treaty system, particularly the limited impact of hard negotiating power compared to early entrance and convincing legal language.

Forum-Shifting and Human Rights: Prospects for Queering the Women, Peace and Security Agenda

ABSTRACT: The adoption of the Women, Peace and Security (WPS) Agenda by the UN Security Council constituted a forum-shift by women’s rights advocates away from the human rights system. As queer critique of the WPS agenda gathers pace, this article reflects on the antecedents of the queer exclusions of the WPS agenda in international human rights law. The article thereby reveals the consequences in other international law regimes of human rights law’s queer exclusions. The article concludes with some tentative proposals to utilise the pluralism of international human rights law to expand queer possibilities for both human rights and WPS.

Space resource activities and the evolution of international space law

We are experiencing a period of renewed interest in human activities in outer space and, in particular, the return of humans to the Moon. Multiple lunar missions, including the NASA led Artemis project and the China and Russia International Lunar Research Station propose a sustained human presence on the Moon which will require in-situ resource extraction and usage. This article explores the likely impact of statements and actions by states on the future evolution of international space law in relation to space resource activities, highlighting the urgent need for greater clarity in the law regarding space resource activities. It will examine the relevant international law, domestic legislation, multilateral agreements, and recent international discussions concerning space resource activities. It concludes that the current international space law regime lacks clear laws regarding space resource activities and emphasises the importance of space law evolving in order to progress with industry and exploration.

WTO Rules for Trade with Disputed Territories

ABSTRACT The legality of trade with territories over which sovereignty is disputed has recently come to the forefront of policy and academic discussions due to emerging case law and escalating territorial conflicts. While considerations shaping the debate on economic activities with disputed territories are typically informed by concerns of international law, little is known about international trade and customs rules applicable to these regimes. This article aims to fill this literature gap by inquiring into the rules that apply to trade with disputed territories under the relevant World Trade Organization (WTO) Agreements, in particular the General Agreement on Tariffs and Trade, the Agreement on Rules of Origin, and the Agreement on Technical Barriers to Trade. In a broader sense, it contributes to the understanding of interactions between the WTO and other self-containing regimes of international law, illustrating the challenges that arise from their different approaches to territories.