Traditional Treaties Research Articles

Are the Treaty Principles Needed in The Bay of Plenty?: A Critical Reexamination of the Fedarb (Bay of Plenty) Sheet of Te Tiriti o Waitangi

This study explores the nature of the Fedarb sheet of the Treaty of Waitangi. The author argues that it conflicts with the conventional argument for the necessity of Treaty principles. She argues that the Treaty principles are a device of settler/invader colonialism. The study is a type of Kaupapa Māori writing inquiry. In the case of the Fedarb sheet, if there was no English treaty sheet provided, then most traditional Treaty scholarship arguments become invalid.Rather than interpret Te Tiriti in light of the English Treaty, we must recognize that all the Fedarb signatories provided to the government was the ability to regulate land-use.Mataatua waka should not have been made a part of the settler colonial construction that was the results of settlers’ inaccurate interpretations of the document..All this highlights the need to view the various sheets of The Treaty of Waitangi and/or Te Tiriti o Waitangi as not a single monolithic and homogenous document, but differentiated international treaties between sovereign hapū and the Crown of England. Each sheet should be seen as separate and different on a regional and whakapapa basis, in its own context.

‘With Great Power Comes Great Responsibility’: Implied Obligations and the Responsibility to Protect

Abstract The General rules of interpretation in the Vienna Convention on the Law of Treaties (vclt) do not only apply to treaties; they also apply to the constitutions of International Organizations (io). A holistic approach to treaty interpretation that combines a textual application of the vclt with a teleological approach to the constitution’s “object and purpose” responds to the need to consider it as a living instrument. However, traditional treaty interpretation is less able to respond to an io’s need to behave as an organization with values and responsibilities that reflect contemporary expectations of accountability. Such challenges could be addressed through the adoption of an extended teleological approach, being the extension of the doctrine of implied powers to implied obligations. The application of implied obligations to the ‘responsibility to protect’ transforms it from a norm to binding legal duty and in doing so, addresses accountability gaps in international governance.

A HUB-AND-SPOKES “PLUS” MODEL OF US ALLIANCES IN THE INDO-PACIFIC: TOWARDS A NEW “NETWORKED” DESIGN

A reassessment the nature of “alliances” and “alignments” since the end of the Cold War, both practically and conceptually, is long overdue. Treaty alliances have become partially obsolescent as new models of security cooperation, such as the ‘strategic partnership’, and other “minilateral” configurations, have emerged as preferred instruments of alignment. The evolving nature of alliance and alignment is nowhere better illustrated than in the metamorphosis of the venerable Hub-and-Spokes US alliance system in the Indo-Pacific. This article captures the changes occurring in the US alliance system from both a macro-level (structural) standpoint, before proceeding to the micro-level to evaluate individual alliance/partnership dyads to illustrate the complexion of the hub-and-spokes “plus” configuration of today. It argues that we are witnessing is a “reshuffling of the deck” in terms of traditional treaty allies – with Japan and Australia now forming the “core” of the system, with South Korea effectively confined as a “single-issue” alliance focused on the peninsula, and with Thailand and the Philippines (arguably) becoming increasingly “peripheral”. But even as the original treaty-system contracts, Washington is seeking to “network” the original model through the acquisition of non-treaty strategic partnerships with key states such as India, Singapore, (and, more circumspectly – Taiwan), whilst also welcoming European engagement. This networking strategy is also designed to achieve second and third order effects through incentivisation of direct “spoke-to-spoke” security cooperation and through the concentration of allies/partners into minilateral formations. The resultant reconfiguration might be dubbed a Hub-and-Spokes “plus” model.

Wii Niiganabying (Looking Ahead):

Fifty years ago, Indigenous elders and leaders drafted their response to the Statement of the Government of Canada on Indian Policy (White Paper of 1969). Their formal rebuttal, Citizens Plus (Red Paper), published in 1970, was a turning point in Indigenous education policy. It marked the beginning of the shift away from government-controlled, assimilationist educational policies to greater Indigenous control over funding and pedagogical methods. The Red Paper refuted the White Paper’s main conclusions and stated that Indigenous peoples are “citizens plus” because the federal government is legally bound to provide Indigenous peoples with services in exchange for the use of the land they occupy. The most important Indigenous rights to be upheld included education, health care, Aboriginal status, and Aboriginal title. These unique rights recognized that Indigenous peoples are the original owners of all the natural resources on their traditional treaty lands. The Red Paper became a political turning point for Indigenous peoples in Canada by presenting an Indigenous vision for a new political and legal relationship between Canada and Indigenous peoples based on Aboriginal and treaty rights. Since the 1970s, Indigenous leaders have struggled to maintain control of educational funding while having to abide by provincial standards of educational curricula. Indigenous communities want to provide more positive learning experiences and positive identity through reconceptualizing educational curricula. They are exploring ways to indigenize the educational experience by igniting cultural resurgence through the integration of Indigenous languages, knowledge, culture, and history by reconnecting students to their elders, land, and communities.

Brexit and Acquired Rights

On March 29, 2017, the U.K. Government triggered Article 50 of the Treaty on European Union (TEU) on withdrawal from the European Union following a referendum on June 23, 2016 in which 51.89 percent voted for the United Kingdom to leave the European Union. As a hybrid provision, the much-discussed withdrawal provision in Article 50 TEU is part of EU law yet also anchored in public international law. Although the European Union is a unique, supranational organization that creates rights for individuals that are directly effective in national law, its member states created the European Union based on traditional treaties under international law.

DO WE STILL NEED A CONVENTION IN THE FIELD OF HARMONISATION OF THE INTERNATIONAL COMMERCIAL LAW

The paper critically discusses the opinion of certain scholars that the use of multilateral treaties (conventions) in the field of harmonisation of international commercial law has been in a state of steady decline. They believe that traditional treaty law has been gradually replaced in recent years by softer methods of making international law, such as the use of restatements and model laws. Some scholars even claim that treaty law is dead or dying. The work assesses whether this view has reasonable grounds, providing an overview of the most prominent hard law and soft law harmonising instruments and outlining issues relating to the success of conventions, their advantages, drawbacks and tensions arising in this area. The paper suggests that conventions remain necessary where the third party or public interest are at stake, however, further improvements are needed to make conventions more successful instruments in international commercial law.

Rule-Based Trade 2.0? The Rise of Informal Rules and International Standards and How they May Outcompete WTO Treaties

One of Professor Jackson’s many legacies is his role in moving the international trade system from a “power-oriented” to a “rule-oriented” regime. The core feature and underlying goal of a “rule-oriented structure”, Professor Jackson explains, is “creating greater predictability, redressing unfair power imbalances, and preventing escalating international tensions”. The focus of “rule-based trade 1.0” is, therefore, on output and effect (predictability and stability of rules; their neutral application to all), not on input and content of the rules in the first place (who defines the rules, how were they adopted, are the rules welfare enhancing, coherent and adapted to new developments?). This contribution highlights how, since the turn of the millennium, we have witnessed stagnation in the formation of traditional treaty rules combined with a rise in informal rules and international standards. While the nature of the rules is thereby changing profoundly -- new actors, new processes, new outputs -- the contribution’s main claim is that the output and effect of the new type of rules being created (e.g. their effectiveness) may well match, and at times outcompete, that of traditional GATT/WTO rules. At the same time, these new (informal) rules and standards may also be more (rather than less) legitimate and coherent in terms of input and content. This potential evolution is described as a move from “thin state consent” (rule-based trade 1.0) to “thick stakeholder consensus” (rule-based trade 2.0).

Rule-Based Trade 2.0? The Rise of Informal Rules and International Standards and How They May Outcompete WTO Treaties

One of Professor Jackson’s many legacies is his role in moving the international trade system from a “power-oriented” to a “rule-oriented” regime. The core feature and underlying goal of a “rule-oriented structure”, Professor Jackson explains, is “creating greater predictability, redressing unfair power imbalances, and preventing escalating international tensions”. The focus of “rule-based trade 1.0” is, therefore, on output and effect (predictability and stability of rules; their neutral application to all), not on input and content of the rules in the first place (who defines the rules, how were they adopted, are the rules welfare enhancing, coherent and adapted to new developments?). This contribution highlights how, since the turn of the millennium, we have witnessed stagnation in the formation of traditional treaty rules combined with a rise in informal rules and international standards. While the nature of the rules is thereby changing profoundly -- new actors, new processes, new outputs -- the contribution’s main claim is that the output and effect of the new type of rules being created (e.g. their effectiveness) may well match, and at times outcompete, that of traditional GATT/WTO rules. At the same time, these new (informal) rules and standards may also be more (rather than less) legitimate and coherent in terms of input and content. This potential evolution is described as a move from “thin state consent” (rule-based trade 1.0) to “thick stakeholder consensus” (rule-based trade 2.0).

Contested multilateralism

“Contested multilateralism” describes the situation that results from the pursuit of strategies by states, multilateral organizations, and non-state actors to use multilateral institutions, existing or newly created, to challenge the rules, practices, or missions of existing multilateral institutions. It occurs when coalitions dissatisfied with existing institutions combine threats of exit, voice, and the creation of alternative institutions to pursue policies and practices different from those of existing institutions. Contested multilateralism takes two principal forms: regime shifting and competitive regime creation. It can be observed across issue areas. It shapes patterns of international cooperation and discord on key security concerns such as combating terrorist financing, halting the proliferation of weapons of mass destruction, and banning certain conventional weapons. It is also evident on economic issues involving intellectual property, on environmental and energy issues, and in the realm of global public health. The sources of dissatisfaction are primarily exogenous, and the institutions used to challenge the status quo range from traditional treaties or intergovernmental organizations to informal networks, some of which include non-state actors. Some institutions are winners from the process of contested multilateralism; others may lose authority or status. Although we do not propose an explanatory theory of contested multilateralism, we do suggest that this concept provides a useful framework for understanding changes in regime complexes and the strategies that generate such changes.

What Van Gend en Loos Stands For (Abstract only)

Three transformational developments flowed from Van Gend en Loos: the central symbols and ideals of EU law; an autonomous legal order with more power than traditional treaties; and a system of individual rights and duties. The judgment also set out how each of these developments was to be deployed. The symbols and ideals were set out to proclaim EU authority rather than to go to what the EU did. What the EU did was, above all, government through law. The EU legal order was conceived, above all, therefore, as a vehicle for the expression of EU government. This, in turn, shaped the allocation of individual rights which were predominantly granted only where they furthered the realization of the collective objectives of EU government. Conceiving EU law as governmental law also left a profound and negative effect on EU legal meaning. This became shaped by EU law being reduced to something to sustain activities valued by EU government rather than to provide a wider, more emancipatory imaginary.

What Van Gend en Loos stands for

Three transformational developments flowed from Van Gend en Loos: the central symbols and ideals of EU law; an autonomous legal order with more power than traditional treaties; and a system of individual rights and duties. The judgment also set out how each of these developments was to be deployed. The symbols and ideals were set out to proclaim EU authority rather than to go to what the EU did. What the EU did was, above all, government through law. The EU legal order was conceived, above all, therefore, as a vehicle for the expression of EU government. This, in turn, shaped the allocation of individual rights which were predominantly granted only where they furthered the realization of the collective objectives of EU government. Conceiving EU law as governmental law also left a profound and negative effect on EU legal meaning. This became shaped by EU law being reduced to something to sustain activities valued by EU government rather than to provide a wider, more emancipatory imaginary.

Collective Decision-Making in International Governance

The traditional treaty, conceived of as a contract between states, is in decline. Recent climate change negotiations have produced nonbinding instruments such as the Copenhagen and Cancun Accords; the financial crisis prompted governments to negotiate Basel III, a nonbinding framework for global banking regulation; the nonbinding Organisation for Economic Cooperation and Development’s Guidelines for Multinational Enterprises are developed countries’ primary rules governing the conduct of transnational businesses. Clouds loom on the horizon even in those areas in which the treaty’s prominence continues, such as investment and trade law. The World Trade Organization (WTO) has not reached a major agreement among its members since its founding twenty years ago, and some states have withdrawn from bilateral investment treaties or the Convention on the Settlement of Investment Disputes Between States and National of Other States (better known as the ICSID Convention).

Using Framework Statutes to Facilitate U.S. Treaty Making

This paper examines the two tracks used by the United States to negotiate and approve international treaties - (1) the traditional treaty process requiring Senate consent by a two-thirds vote and (2) the newer fast track process used for trade agreements, requiring Congressional passage of a law to approve and implement the agreement. Several historical and current examples are used such as the Treaty of Versailles and the Kyoto Protocol on climate change. The paper explains why the latter process is superior in many ways, and asks whether it should be applied more broadly beyond the topic of trade. Three challenges to doing so are discussed. First, the paper considers whether the Congressional-Executive Agreement format used for trade agreements is constitutional. Second, the paper considers the democratic acceptability of approving treaties by law rather than by a supermajority in the Senate. Third, the paper points to the key ingredient for the trade approach which is a framework statute that sets an agenda for the trade negotiations in advance and sets the terms for implementation. The paper recommends the adoption of similar international negotiating framework legislation in other areas of international law such as environment, labor, intellectual property, and possibly human rights.

Use of Economic Sanctions under International Law: A Contemporary Assessment

SummaryThe growth in the use of collective economic sanctions in the post-Cold War epoch calls for a re-examination of the legal basis and constraints on the implementation of sanctions. This article is an attempt to explore, from a legal point of view, the problems and restrictions associated with sanctions, and to suggest the ways in which economic sanctions can be rendered more legitimate in terms of international legal requirements. It is argued that, in addition to the traditional treaty basis of collective sanctions, a breach of an erga omnes obligation is also a legitimate legal basis for economic sanctions. It is also contended that, in addition to traditional economic considerations, sanctions should be subject to other limitations such as respect for principles of international humanitarian law. After determining the restrictions on the implementation of sanctions, the author makes proposals for refining current practices in imposing economic sanctions. In conclusion, it is argued that collective sanctions have the potential of being used in a more humane and institutionally coherent way.