Relevant Treaties Research Articles

Blue Bank International v. Venezuela: When Are Trust Assets Protected under International Investment Agreements?

The award rendered by a tribunal in proceedings conducted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) between Blue Bank International and Venezuela in April this year is the first public decision addressing in detail the question of whether trustees can be considered protected investors with regard to trust assets under International Investment Agreements. This article analyses the findings of the Blue Bank tribunal with a view to more generally identifying requirements for the protection of trust assets under investment treaties. Based on a review of the relevant treaty provisions and the jurisprudence of arbitral tribunals it concludes that, in the absence of beneficial ownership, trustees will typically not be protected. By contrast, trust assets can be protected either where a treaty admits trusts themselves as investors or where the rights of beneficiaries are specific enough to amount to beneficial ownership.

Территориальное применение международных договоров

The article is devoted to research on the territorial application of international treaties. This author examines a number of particularities arising in treaty practices of individual states. These particularities are due to the fact of possessing overseas territories. In this case, in the absence of the treaty provisions on its territorial effect the extension of treaty provisions for a certain territory of the state is carried out by means of a unilateral statement when the state is expressing its consent to be bound. Thus, they either extend the scope of application of the treaty in respect of a certain territory or exclude it from its scope. The various types of treaty provisions regulating the territorial scope of a treaty (territorial positions) are discussed in the article. Among them are the general provisions of a treaty relating to the territorial application. These provisions provide that any party of a treaty may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories in respect which are the subject of a treaty. Also in the treaty practice of states there are special treaty provisions relating to the territorial application. They contain a detailed list of territories in respect of which the relevant treaty is, or is not applicable. The author indicates the need to distinguish between territory that is the object of a relevant international treaty and the territory in respect of which the treaty is binding for the application, as the provisions of article 29 of the Vienna Convention only applies to the latest variant. Also the author notes the need to distinguish between the territorial application of an international treaty and separate protocols to it. They should be treated as separate documents as each of them can have a different territorial application, depending on the presence of territorial provisions and their wording.

Appraisal of Recent Trends in Environmental Regulation of Industrial Pollution, Energy Sector and Air Quality Control in Nigeria: 2011-2015

Nigeria's formal environmental regime has developed significantly from humble beginnings. Having been initiated in the colonial period during which environmental issues were generally couched within public health regulation, and having developed in a rather ad hoc manner in the early days of independence during which heavy reliance was placed on the law of nuisance, Nigeria now has a relatively comprehensive environmental regime. This regime is administered by an array of institutions. This article reveals that Nigeria now has relatively comprehensive environmental legal and institutional regimes adequately empowered to ensure effective compliance, monitoring and enforcement of all relevant treaties, legislation and regulations for sustainable development and conservation of natural resources in Nigeria. The NESREA Act 2007 and Regulations 2009-14 were instruments of necessity having learnt lessons from the drawbacks of its predecessor agency between 1991-2007. This review aims at providing an overview of a comprehensive environmental legislation in most recent times for effective protection of the environment, management of biodiversity and promotion of sustainable development in Nigeria. It further seeks to provide an overview of the unprecedented development in Nigeria's environmental law by the coming into force of twenty-four environmental regulations made by the Federal Minister of Environment.

UN-BLURRING THE MYTHS AND REALITIES OF WOMEN AND CHILDREN’S RIGHTS IN SOUTH AFRICA

Awareness of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 1979) and the Convention on the Rights of the Child (CRC 1989) is relatively high within academic and political circles in South Africa and elsewhere around the world. In South Africa, this can be ascribed mainly to the powerful women’s lobby movements represented in government and academic sectors. Women and children’s issues have been especially highlighted in South Africa over the last few years. In this process, the aforementioned two international human rights instruments have proved very useful. There is a gender desk in each national department. The Office on the Status of Women and the Office on Child Rights have been established within the Office of the President, indicating the importance attached to these institutions. These offices are responsible for co-ordinating governmental efforts towards the promotion and protection of women and children’s rights respectively, including the two relevant treaties. Furthermore, there is also a great awareness amongst non-Governmental Organisations (NGOs) in respect of CEDAW and CRC. This can be ascribed mainly to the fact that there is a very strong women’s NGO lobby and NGOs are actively committed to the promotion of children’s rights. Women are increasingly vocal and active within the politics of South Africa, but the weight of customary practices remains heavy. The foregoing is evident of the widening gap between policy theory and practice in the fraternity of vulnerable groups – children and women in particular.

Interpreting International Crimes from a ‘Female Perspective’: Opportunities and Challenges for the International Criminal Court

What would it mean for the International Criminal Court (icc) to interpret the crimes within its jurisdiction without “adverse distinction” on the grounds of gender? Would it simply mean recognising that these crimes may be committed against men, women, boys and girls; or would it require a deeper rethinking of, and perhaps a departure from, conventional interpretations of these crimes? This article explores this question, using the crime against humanity of “apartheid” and the war crime of “using children in hostilities” as examples. The article takes into account legal sources, such as relevant treaties and judicial decisions, as well as empirical research that throw the reality of violence against women and girls into sharp relief. It is hoped that this exploration will lead to further discussion about gender discrimination in the interpretation of the Rome Statute crimes, and contribute to the development of a “feminist jurisprudence” in international criminal law.

The Direct and Indirect Costs of Tax Treaty Policy Evidence from Ukraine

This study combines macro and micro data to quantify the revenue effects of double tax treaties. First, drawing on administrative information, the study estimates the tax sensitivity of income flows (dividend, interest, and royalty payments) at an aggregate level. The analysis finds important direct revenue costs linked to treaty restrictions on taxing rights, especially for flows into a few major investment hubs. However, high elasticities of income flows also suggest that increases in withholding rates at the individual treaty partner level would not necessarily result in more revenue collection. Second, the study uses firm-level information to estimate the sensitivity of reported profitability to changes in the relevant treaty network. The analysis of the reported earnings of multinational enterprise affiliates in Ukraine suggests that the ownership structure and operations with affiliates in certain jurisdictions explain reported profitability, and should thus receive increased attention in risk assessment and transfer pricing audit activities.

Respect for Human Rights: Law and History

Several recent studies have found a positive, statistically significant correlation between ratification of human rights treaties and respect for human rights. Some commentators have interpreted these results as evidence of the causal effect of international human rights law on human rights outcomes. We revisit this debate and present evidence that for two treaties — the Convention on Elimination of Discrimination Against Women and the Convention Against Torture — these results disappear once time trends are taken into account. Our evidence suggests that recent improvements in human rights are attributable to long running trends that pre-date the emergence of the relevant treaty regimes.

Reforming Investor–State Dispute Settlement: The Need to Balance Both Parties’ Interests

The investor-to-State dispute settlement (ISDS) system is undergoing a reform process under the new competence conferred to the European Union (EU) by the Lisbon Treaty. The process pursues the abandonment of the traditional system and its replacement by an International Court System (ICS) with an appellate mechanism to increase consistency of decisions. The European Commission (EC) proposal regarding this reform was first adopted by the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement, to be then proposed to the United States in the context of the negotiation of the Transatlantic Trade and Investment Partnership (TTIP). ICS is composed of a Tribunal of 15 independent members competent to adjudicate disputes between investors and the State under the relevant treaty by an award that may be enforced only if no appeal is filed within the following 90 days with the Appellate Tribunal appointed under the treaty. The analysis of the EC’s proposed ICS points to the political nature of the reform rather than to a serious review of the functioning for over 40 years of the traditional ISDS. The latter has proven to be able to achieve a fair balance between the conflicting interests of the two parties, the investor and the State, and to be able to satisfy by appropriate amendments the key elements on which the EC’s proposal is based. Among such key elements are the States’ regulatory powers, the consistency and predictability of decisions, the transparency of the arbitration process and the prevention of practices such as “forum shopping”.

Outer Frontiers of Banking: Financing Space Explorers and Safeguarding Terrestrial Finance

For decades, governments alone financed launching, operating, and returning space objects and humans. Scientific exploration of space propulsion, navigation, communication, and life safety advances resulted in commercially viable technologies and business methods. Scientific research and mission goals depended on government space mission priorities and budget appropriation processes. Government funding of exploration still predominates, outspending private sector investments. Commercial satellites are financed based on their terrestrial revenues and the risks of launch and in-service life. Space entrepreneurs are emerging with the wealth and explorer spirit to attract teams to do what governments and space industry contractors have not prioritized or funded: asteroid-hunting satellites, space tourism, space freight, lunar and asteroid mining, and habitats on the Moon and Mars. Concurrently, developing countries are launching satellites and missions, diversifying space entrepreneurship. Space finance is an inherent barrier or right. Space finance is a silent technology enabler or mission continuity risk. Space exploration is a unique setting to reimagine better space and terrestrial finance options and principles based on functional valuation models. Space law was written in the language of foreign policy and security concerns rooted in the Cold War Era. For more private sector financing to explore space, space law and transaction frameworks will need exploration and updating. Finance is essential to advance peaceful discoveries and uses of space assets. If exploring space is to be truly open to all humankind, then options for financing and insuring space explorers and missions must expand accordingly and inclusively, beyond governments and high net worth entrepreneurs. This article reviews relevant treaties and transactional frameworks for financing space operations. Historical context, principles, and inspirations are gathered from bank, finance, and market precedents of funding terrestrial exploration and development. The article summarizes transferable principles and practices of modern asset valuation models, transactional frameworks, and strategies for allocating project benefits and mitigating project risk. Based on such principles and precedents, the article identifies the challenges of, and suggests arrangements for, banking and finance of space-borne assets and activities. A space bank is described to prove that banking in space is viable and improves on terrestrial money flows for fragile regions affected by war, corruption, disaster, or breakdown of basic human rights. Weighing historical and modern context and space-based humanitarian and business continuity advantages, the article concludes by recommending that policymakers elevate space banking, finance, and insurance as topics of scientific inquiry, on par with other scientific explorations and technologies, to unleash a reliable future of human exploration of space.

Recent Developments Regarding Corporate Mobility within EU's Internal Market

The European Union shall guarantee the free movement of persons – natural and legal. In this regard, it is necessary that the entrepreneurs should be able to settle their business anywhere in the internal market. However, freedom of establishment, as facet of the freedom of persons, enshrined in Article 49 and 54 from TFUE becomes an extremely complex issue to be accomplished in the absence of a legislative harmonization, in this regards.The aim of this paper is to offer a detailed appraisal on the feasibility of the cross-border mobility of the companies within internal market of European Union; based on relevant Lisbon Treaty provisions and EU case law on free movement of establishment.Taking into account the various obstacles to seat migration, CJEU attempted to offer viable solutions that addressed the freedom of establishment, such as the "conversion" of the companies, revealed by the recent cases.

The Appeal to Science and the Formation of Global Animal Law

In 2014, two landmark international legal decisions made a significant contribution to the development of international law on the protection of animals: the report of the Appellate Body of the World Trade Organization (WTO) in EC-Seal Products, and the judgment of the International Court of Justice (ICJ) in Whaling in the Antarctic: Australia v. Japan. Science plays a significant role in both decisions. In EC-Seal Products, the WTO Appellate Body ruled that the European Union’s ban on seal products was justifiable under Article XX(a) of GATT as a matter of public morals, because it was based on European citizens’ moral objections to cruelty in seal hunting – concerns that were validated in part based on reports and evidence from scientific experts. In Whaling in the Antarctic, the ICJ ruled that Japan’s whaling programme in the Southern Ocean is not ‘for purposes of scientific research’ within the meaning of the International Convention on the Regulation of Whaling because it is not ‘reasonable’ in relation to its research objectives. Both cases, as well as the broader international controversies over whaling and sealing in the context of which they arose, illustrate the persuasive power of the ‘appeal to science’: enlisting scientific objectivity and rigour to underpin the credibility of legal arguments and legal norms. But the role of science in both cases, while important, is only auxiliary. The questions that the WTO and the ICJ had to resolve were fundamentally legal ones concerning the interpretation of the relevant treaties. The cases also implicated more profound questions of policy and ethics at stake in international conflicts over the protection and the exploitation of marine mammals.

Article 30 of the 1969 Vienna Convention on the Law of Treaties: Application of the Successive Treaties Relating to the Same Subject-Matter

The proliferation of international investment agreements and of arbitral jurisdiction under those agreements increases the likelihood that normative conflicts may arise as between various treaties that protect the same investor from the action of the same State-party to the relevant treaty. While Article 30 of the 1969 Vienna Convention is a provision of a key importance here, the arbitral practice has not so far directly resolved the issue of normative conflict between various investment treaties. While the jurisdiction of investment arbitration tribunals is generally not restricted by the litis pendens rule, the same treaty may well be raised and have to be dealt with in different arbitration proceedings. This contribution engages the range of issues arising out of the possibility of such normative conflicts, such as the criteria for identifying whether treaties are in conflict, the range of normative conflicts and the availability of arbitral jurisdiction to resolve them.

Unravelling the Intricacies of Marine Biodiversity Conservation and its Sustainable Use: An Overview of Global Frameworks and Applicable Concepts

Conservation and sustainable use of marine biodiversity under international law is marked by a myriad of treaties and soft-law instruments applicable to areas within and beyond national jurisdiction. The most relevant global treaties in this context are the United Nations Convention on the Law of the Sea, its Fish Stocks Agreement, and the UN Convention on Biological Diversity. In order to assess the state of play of conservation, including with respect to the creation of marine protected areas, and the sustainable use of marine biodiversity under international law, this chapter examines the inter-relationship between these conventions in light of recent developments in international policy and law. Some of these developments include the protection of vulnerable marine ecosystems by regional fisheries management organisations, the CBD description of ecologically or biologically significant marine areas, as well as relevant Aichi Biodiversity Targets. In this context, governance gaps, especially concerning marine biodiversity in areas beyond national jurisdiction, are also highlighted, along with opportunities for achieving and mainstreaming marine biodiversity conservation in a comprehensive manner towards sustainable development.

What shall we do with the drunken sailor? EC Competition Law and Maritime Transport.

This study examines the application of EC competition law in the special environment in which the shipping industry operates, with special emphasis on the two block exemptions of Art. 3 of Regulation 4056/86 and Art. 3 of Regulation 823/2000. It will show that, like with a drunken sailor, something is seriously amiss with the way EC competition law is applied in this specific field. The first chapter provides some background information on the development of the shipping industry since the middle of the 19th century and an overview of the main legal developments in EC maritime competition policy. Chapter two, which constitutes the main part of this paper, contains an analysis of the two block exemptions mentioned. Chapter three addresses the question whether the current approach of EC competition law is adequate and compatible with the relevant Treaty provisions. This will lead to some concluding remarks on the question whether the current approach should be continued or whether it is advisable to modify it.

The WTOs DSU Article 23 as Guiding Principle for the Systemic Interpretation of International Investment Agreements in the Light of TRIPs

The Philip Morris tobacco group and the pharmaceutical company Eli Lilly claim in investment disputes initiated against Uruguay, Australia, and Canada that the respective host states did not treat their intellectual property rights in accordance with the relevant investment treaties. Since the claimants also substantiate their assertions by alleging violations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) committed by the host states, the need to better understand the interaction between investment treaties and TRIPs has increased significantly. This article suggests using Article 23 of the WTO Dispute Settlement Understanding (DSU) as a guiding principle for the systemic interpretation of investment treaties in the light of TRIPs. The provision as such prohibits the enforcement of WTO law outside the WTO Dispute Settlement Body. In the context of systemic interpretation, DSU Article 23 instructs arbitral tribunals not to use investment treaties as vehicles for redressing violations of TRIPs committed by the host state.

Amendments to the law on citizenship of the Russian Federation: pros and cons

At the present stage, under the conditions of aggravation of geopolitical situation the process of transformation of the institute of citizenship in the Russian Federation is in progress. To this end, it is necessary to overcome negative tendencies in the sphere of legal regulation of this institute. In particular, the author proposes to distinguish the concepts of "dual citizenship" and "second citizenship", which allows differentiating the status of individuals who have Russian citizenship and citizenship of a foreign state with which the Russian Federation has or has not have a relevant treaty. The Author substantiates the necessity to change the approach to defining the concept of a native Russian speaker that is used in the law on citizenship. The analysis of scientific views concerning the criteria of referring an act to a crime and the practice of law enforcement leads to the conclusion that it is inadmissible to introduce the institute of criminal liability imposed for the failure to notify a state public authority of different citizenship or to submit a document that gives right of permanent residence in a foreign country without taking into account its relationship to the state or military service and other specific features.

Pre-Conflict Military Activities: Environmental Obligations and Responsibilities of States

Much study has focussed upon the legality of, as well as justifications for, military activities of States causing environmental damage in times of armed conflict, with particular reference to norms of international humanitarian law. However, in preparation for potential armed conflict, such military activities may also take place before the commencement of any such armed conflict. This paper seeks to explore the environmental protection obligations of States under international law in their conduct of military activities in anticipation of armed conflict. On the one hand, peacetime obligations entailing environmental protection, which may be derived not only from international environmental law but also other fields such as international human rights law and international investment law, would generally apply during the pre-conflict stage. On the other hand, it is also observed that there may be legal justifications for deviation from such obligations in particular circumstances in connection with the pre-conflict situation, for instance, by reliance upon exception clauses within the relevant treaties, suspension of primary obligations due to circumstances such as the needs of national security, as well as invocation of circumstances precluding wrongfulness under the law of State responsibility.

The Militarization of Outer Space and the Liability Convention

In spite of the fact that international law has proclaimed that outer space is to be used for peaceful purposes, States continue to expand their military capacity beyond the bounds of the Earth's atmosphere. Recent testing of anti-satellite weaponry is a cause for concern that the term 'peaceful uses' is losing its meaning in an increasingly militarized outer space environment. The problem certainly stems from the fact that space law does not explicitly define said uses, thereby allowing States to provide a legal justification for their actions. This article will examine existing space law, as well as general international law, in an attempt to flesh out a more substantial meaning for the most oft-abused provisions of the relevant treaties in three distinct sections: first, we shall explore the notion of 'peaceful uses' as a general term; we shall proceed with an analysis of the prohibition of stationing weapons of mass destruction (WMDs) in outer space; finally, we shall see how the Liability Convention may be read as limiting States' potential advantages from militarizing space.

Democracy in the European Union: What has the Court of Justice to Say?

This article examines how the core European Union Treaties and the Court of Justice of the European Union have sought to give effect to the principle of democracy within the European Union legal order. It explains that the complexity of the legislative procedure, with its checks and balances between the relevant European Union institutions, is a reflection of the need to ensure effective participation by all of them. The three main institutions of the European Union, namely the Parliament, the Council, and the Commission, represent different legitimate interests which do not always coincide. The fact that European Union legislation is multilingual and often expressed in broad terms presents its own particular challenges to the Court of Justice of the European Union when it is asked to interpret that legislation. For its part, the Court of Justice of the European Union is sensitive to the wishes of the legislature, and therefore has been willing to modify previous case law based solely on the Treaties where the legislature has subsequently signalled its intention to apply the relevant Treaty provisions in a different manner.

States of Compliance?: Global Human Rights Treaties and ASEAN Member States

The status of human rights in Southeast Asia is under increasing scrutiny as the process of community building culminates in the Association of Southeast Asian Nations (ASEAN) Intergovernmental Commission on Human Rights (AICHR). National, regional, and external civil society actors now populate the ASEAN “human rights space” pressuring member governments and ASEAN institutions. This article investigates the status of human rights in the 10 member states of ASEAN by presenting the patterns of ratification, reservation, and fulfillment of the core global human rights treaties. This analysis suggests that, despite a growing number of treaty ratifications, compliance with the standards those treaties include remains elusive. Reservations, resistance to the optional protocols, and nonsubmission of reports to the relevant treaty bodies suggest that ratification has not led to full compliance. The article concludes that Southeast Asian states will continue to diversify with regard to human rights, placing great strain not only on the AICHR but ASEAN itself.