Law Of Treaties Research Articles

The Doctrines of Margin of Appreciation and Evolutive Interpretation: A Review of the European Court of Human Rights

The European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) - the focus of this work - in its conceptualisation as a “living instrument” and a bulwark against human rights abuse in Europe, has been construed with different canons of interpretation by the European Court of Human Rights (the Strasbourg Court), including the doctrines of the Margin of Appreciation and the evolutive interpretation. This work aims to review the doctrines of the Margin of Appreciation and Evolutive Interpretation from the jurisprudence of the Strasbourg Court by attempting a foray into the debates emanating from the court’s interpretative jurisprudence. It also interrogates how the ECHR is interpreted in the context of the Vienna Convention on the Law of Treaties (VCLT). The method adopted is doctrinal, with a critical and analytical approach that involves desk and library research. The work relies on primary and secondary materials such as relevant case laws of the Strasbourg Court, legislations, textbooks, journal articles, conference proceedings/papers, online documents, and news to critically evaluate the significance of the doctrines of the Margin of Appreciation and Evolutive Interpretation to the realisation of the objectives of the ECHR. The article investigates how the Strasbourg Court employs the doctrines of the margin of appreciation and evolutive interpretation in achieving the objectives and purpose of the ECHR. The work finds that regardless of their criticism as judge-made doctrines without normative basis, the doctrines of the Margin of Appreciation and Evolutive Interpretation as applied by the Strasbourg Court align with the rules of treaty interpretation as per the VCLT and, thus, remain the best canon of interpretations befitting for the ECHR. This is so considering that interpretation and applications of laws are undertaken in an ever-changing world that requires dynamic laws that could adapt to new situational contexts that are not initially contemplated at the time of treaty negotiations and formations.

Reserving the objectionable: reprisals against enemy civilians, the United Kingdom and 1977 Additional Protocol I

Belligerent reprisals are a largely discredited method for the enforcement of international humanitarian law, which have been progressively limited and prohibited. Additional Protocol I of 1977 prohibits reprisals against enemy civilians but the United Kingdom lodged a reservation upon its ratification of the Protocol reserving the right to engage in reprisal activity against enemy civilians in certain circumstances. This article assesses the permissibility of the United Kingdom’s reservation according to the regulatory framework set out in the 1969 Vienna Convention on the Law of Treaties, which provides that a reservation is not permissible if it is incompatible with the object and purpose of the treaty. It then considers the possible legal effects of the reservation should it be determined to be impermissible.

Normative aspects of jus cogens identification in Vienna Convention on the Law of Treaties

Normative aspects of jus cogens identification in Vienna Convention on the Law of Treaties

Hersch Lauterpacht and language in the international law of treaty interpretation

The contribution addresses a lesser-known chapter in the history of the rules on the interpretation of treaties: the role played by Hersch Lauterpacht as Rapporteur at the Institut de Droit International on the topic of treaty interpretation. The work of the Institut on this topic was situated within the general effort to progressively develop and codify the rules of international law, a movement itself inspired by the idea of codification that unfolded during the nineteenth century mainly in continental Europe. After the Second World War, Lauterpacht initiated the study of the topic of treaty interpretation both at the Institut and at the International Law Commission (ILC). As Rapporteur at the Institut, Lauterpacht provoked a remarkable controversy by proposing to place the emphasis, in the process of interpretation, on the travaux préparatoires rather than on the text of the treaty. Although the 1956 resolution of the Institut did not follow Lauterpacht in this respect, the work of the Institut nevertheless proved to be a catalytic event leading towards the integrative conception of the rules of interpretation which the ILC developed in the 1960s while preparing the Vienna Convention on the Law of Treaties. The Lauterpacht episode also marked a change of focus with regard to the addressees of the rules of treaty interpretation from intergovernmental interaction towards judicial decision-making.

"Municipal values": to determine the parameteral signs of phenomenology

The article examines the topical issues of defining the parametric features of the phenomenology of "municipal values”. The authors, on the basis of research and analysis of the historical retrospective of the origin and functioning of city self-government, determine the main stages of the appearance, formation and functioning of municipal values. The study of the phenomenology of municipal legal values is accompanied by the construction of a procedural chain "public values - constitutional values - municipal values”, in which the latter are considered as a natural manifestation and result of the activity of both public and constitutional values. A conclusion is made about the special role and significance of municipal legal values, which arose in historical retrospect, and were supplemented by the experience of the existence and functioning of city self-government, the achievements of which were interpreted at other levels of local self­government. This is evidenced by the borrowing by the national legislator of municipal legal values from the state legislation on local self-government and by the international legislator from the array of norms of international public law through the use of the mechanisms of international treaty law. It is also proven that modern international public law actually contains a paradigm that has developed due to the perception by the signatory states of relevant international treaties of the profile focus of international legal standards of local self­government. Its main subject, on the one hand, is the fundamental principles of local democracy, which have been generalized by the Western (European) experience of municipal activity and municipal construction, and on the other hand, they are nothing more than the values of municipalism, which must be borrowed by the post-Soviet states parties to such international agreements that after the collapse of the USSR acquired state sovereignty and entered the circle of independent member states of their European and international community.

Retroactivity in the law of treaties

Problem setting. One of the most ambiguous issues in the law of treaties is retroactivity of international treaties. The principle of non-retroactivity of legal norms is recognized both in national legal systems and in international law. This principle is codified in the Vienna Convention on the Law of Treaties, which states that a treaty, unless a different intention appears from the treaty or is otherwise established, does not have retroactive effect. The dispositive nature of this norm causes difficulties, which makes it necessary to study this issue in order to determine the prerequisites for the retroactivity of international treaties and to analyze practice in this area. Analysis of recent researches and publications. Scholars such as O.V. Pushnyak, I.I. Lukashuk, R.A. Kalamkaryan have studied this issue. However, there is the need for further study of this issue due to the dispositive nature of the provisions on the non-retroactivity of an international treaties, which gives states the right to act at their own discretion, thereby causing uncertainty in this matter. Purpose of research is to determine the grounds in the presence of which international treaty may have retroactive effect; examine the practice of international tribunals on this matter. Article`s main body. This study examines history of the principle of non-retroactivity of legal norms and its codification in the Vienna Convention on the Law of Treaties. Provisions of article 28 of forecited Convention are precisely analyzed. Meaning of the terms “act”, “fact” and “situation” is set. Three main grounds in the presence of which Attention is given to the examination of the Convention on the Prevention and Punishment of the Crime of Genocide and its retroactivity. Practice of international tribunals on this matter is examined. Conclusions and prospects for the development. According to the general rule, which is codified in the provisions of article 28 of the Vienna Convention on the Law of Treaties, treaties do not have retroactive effect. However, given the dispositive nature of this norm, issue of the retroactivity of this or that international treaty should be studied separately. For this purpose tribunal must in each case analyze in detail both the action/fact/situation to which treaty should be applied, as well as the treaty itself, in order to decide whether the retroactivity of the treaty is expressly formulated in its provisions, results from the interpretation of a treaty or emanates from the nature of the treaty

Towards comprehensive civilian protection under Common Article 3 by addressing protection gaps in spill-over conflicts

There is a proliferation of non-international armed conflicts across the globe. Increasingly, these conflicts involve groups across two or more borders or that involve cross-border clashes. This is termed as spill-over conflict. The Middle East and Central Africa serve as salient examples to this effect. A literal reading of Common Article 3 locks out the victims of such conflicts from protected status. Common Article 3 restricts its application to non-international armed conflicts occurring in the territory of one high contracting party. The gap in protection occurs where the groups do not meet the organisational threshold in Additional Protocol II regarding the structure of the non-state actors’ organisation but are engaged in conflicts spanning more than a single territory. This paper examines the history of Common Article 3 and finds that the parties had no intention of locking out the application of Common Article 3 based on territorial considerations. Secondly, this paper looks into customary international law through state practice and jurisprudence. It finds that state practice and emerging jurisprudence recognises the fundamental principles that underpin Common Article 3. To this end, even where treaty law is inapplicable, customary international humanitarian law shall apply to provide protection to victims of spill-over non-international armed conflict. It is against this backdrop that the paper proposes that the single territory provision in Common Article 3 be amended to accommodate a more inclusive cross border reading.

Treaty Law Agreement International in National Law

Source: Many formal laws are used by judges to decide a case. What just? The answer is that there are five sources of formal law that can be used by judges, i.e., laws, customs, treaties, jurisprudence, and doctrine. Usually, the judge decides a case based on laws, agreements, international law, and jurisprudence. If it turns out no, there is a source; that's what can be done to give an answer about the law, then searching for the opinions of scholars or knowledge of the law Knowledge law is source law, but no law like the Constitution has strength binding. So, you can just say that source law is many formal laws used by judges to decide a case, called laws, agreements, treaties, and jurisprudence. Treaty as Agreement International in the National Legal System Article 11 of the 1945 Constitution of the Republic of Indonesia only authorizes the president, with the authority of the DPR RI, to make agreements with other countries. creation and validation agreement internationally. Deep-gap regulation legislation in Indonesia causes diversity methods look to international law as well as inconsistency practice court national to application law international. Until moment this, there is not yet an explanation normative that can finish polemic practice inconsistency.

Clauses Providing Possibility of Choice in International Treaties

The use of clauses that provide possibility of choice is explicitly permitted in the law of treaties, whereby international treaties can provide the contracting states various ways to shape the content of the agreement according to their national needs and interests. Although these clauses can be found in many international treaties, they have not been examined in detail so far. In order to remedy this deficiency, the paper gives a definition for the clauses, presents the examples found in international treaties, creates a categorisation of these examples, analyses the rules governing the application of the clauses and examines the limits of their application. With the help of these issues, the study aims to provide an insight into the specific features of these provisions, the mechanisms by which they operate and to reveal the reasons of their use.

Peaceful settlement of inter-state energy disputes: applicable law, defence arguments, and remedies in the ICC arbitration between Iraq and Turkey

Abstract At this critical juncture in the energy transition dominated by debates over armed conflicts, advisory opinions on climate changes, and investor-State arbitration, it is critical to also consider developments in the peaceful settlement of inter-State energy disputes. One central dispute between the Republic of Iraq and the Republic of Turkey arose out of the Crude Oil Pipeline Agreement for the supply and purchase of crude oil. Iraq filed a request for arbitration in May 2014 under the International Chamber of Commerce Rules of Arbitration. The Tribunal awarded Iraq nearly United States Dollars (USD) 1.5 billion. The Tribunal’s unanimous final award in 2023 discusses fascinating aspects of international energy transactions, including the choice of domestic law in a treaty dispute, defences under the law of treaties, a putative norm of jus cogens to prevent genocide, and possible remedies in an inter-State pipeline arbitration.

Briefly Noted

On September 5, 2023, the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership Panel (CPTPP Panel or the Panel) issued its first decision. The case was initiated in May 2022 by New Zealand which claimed that Canada's system for the administration of its tariff rate quotas on dairy projects is inconsistent with Canada's obligations under the Partnership Agreement. After consultations with Canada failed, New Zealand requested that a panel under Article 28.7 of the Agreement be established to examine the issue. There was a dispute about the role to be played by a prior decision of the US-Mexico-Canada Agreement (USMCA) Panel on similar issues. New Zealand felt that the USMCA Panel decision was “highly pertinent” because of the similarities between relevant provisions in the two agreements, but Canada disagreed, arguing that not only is the USMCA decision irrelevant but that its interpretation of the relevant provisions was incorrect. Australia, which intervened as a third party participant, agreed with New Zealand, pointing to the need to ensure consistent decisions concerning what it deemed were identical provisions in the two agreements. Japan, another third party participant, suggested that the panel ensure that its decision was made in reliance on Articles 31 and 32 of the Vienna Convention on the Law of Treaties (concerning rules of interpretation).

The Role of Custom in the Formation of the Obligatory Nature of the International Humanitarian Law Treaties

The Role of Custom in the Formation of the Obligatory Nature of the International Humanitarian Law Treaties

A hybrid entity structure for tax optimization of foreign direct investment in the U.S.

AbstractThis article develops a new strategy for the (tax) optimization of foreign direct investments in the U.S. This strategy is particularly favorable for natural persons. By using a foreign upstream hybrid partnership, a substantial tax optimization of the current taxation of profits as well as the taxation of capital gains can be achieved. In addition, current and final losses may also be offset cross‐border to a certain extent in the case of an exemption under treaty law. This tax structuring idea is presented by way of example and explained on the basis of the country constellation U.S./Germany.

JUDICIAL ACTIVISM AND METHODS OF INTERPRETATION

A distinct characteristic of the judicial activity of integration courts is that it is aimed not only at resolving legal conflicts, but also at interpreting the law in order to fill the existing gaps. Filling legal gaps may be described as a key function of an integration court. This special characteristic leads to the phenomenon of judicial activism. The study of the case law of integration courts reveals the possibility to formulate activist legal findings using different methods of interpretation. The possibility to use the teleological method of interpretation, which is the most suitable in order to eliminate legal gaps, stems directly from the provisions of the Vienna convention on the law of international treaties. The analysis of the acts of the Court of Justice of the European Union allows to establish a strong correlation between activist approaches and the use of the teleological method of interpretation. However teleological interpretation does not necessarily mean the choice of the most progressive available options. Often the activism manifests itself in the search of a balance between the interests of the integration organization and its Member States. The Court of the Eurasian Economic Union develops activist approaches by using both traditional methods of interpretation and teleological interpretation as well as having recourse to constitutional traditions of the Member States.

The Hitchhiker’s Guide to Outer Space Patents

Investment in space technologies has predominantly been a prerogative of the public sector. Now increasing privatization and commercialization of space markets is creating opportunities to develop new space applications. The potential to commercially leverage intellectual property is a motivating factor behind this private financing and plays a key role in helping private companies secure returns on investment. International space law treaties remain silent on the notion of intellectual property and intellectual property treaties lay heavy emphasis on territorial application of patent law, thereby creating a theoretical disconnect. Legal machinery drafted for activities on board the International Space Station (ISS) and the US Patents in Space Act serve as good starting points in bridging the gap between patents and space law by advancing the concept of quasi-territoriality. However, in doing so, they expose the space-patent market to possibilities of forum shopping, flags of convenience and race to the bottom scenarios. Lack of a reliable legal regime to address issues of patent infringement can negatively influence the future development of the space sector. The resolution to this problem is a new international legal framework that establishes uniform conditions for enforcement of space-based patents. outer space, patents, space commercialization, extra-terrestrial jurisdiction

International Obligations Calling for Constitutional Protection of the Right to a Healthy Environment

The international recognition of a universal right to a healthy environment is reaching its pinnacle. At least 156 States have recognised this right through the adoption of international treaties and 161 States have recognised it through their endorsement of UN General Assembly Resolution 76/300. While codified in several regional agreements, the right is not binding on all States through treaty law. The European Convention on Human Rights makes no explicit reference to the environment which might lead to the conclusion that States Parties are under no obligation to implement a right to a healthy environment into their domestic legal systems. However, the jurisprudence of the European Court of Human Rights indicates that this right may be a precondition to the enjoyment of other rights safeguarded by the Convention. Furthermore, it may be becoming universally binding as a standalone right under customary international law. This article concludes that various international obligations require States to ensure an explicit or implicit right to a healthy environment and that such a right should enjoy constitutional status. It explains that elements of the right may be implicitly embedded in constitutions even if they have no environmental provisions, as is the case of the Icelandic constitution. However, that is not an appropriate implementation of the standalone right to a healthy environment.

PERLINDUNGAN TERHADAP LESSEE USAHA DALAM PERJANJIAN SEWA GUNA SEBAGAI KONTRAK BAKU

This study aims to determine the clarity of existence (leasing) in agreement and leasing law in the perspective of standard agreements.The method of approach is juridical normative and the data is analyzed in a qualitative normative way to produce descriptive data based on the study of statutory norms.The results of the study show that leasing in treaty law has 2 (two) financing categories, namely finance lease (lease with option rights) and operating lease (lease without option rights). In contract law, the operating lease has the aspect of a lease agreement while the finance lease is more in line with the aspect of buying and selling, but each of these aspects compared to the financing category still has a difference. Whereas leasing in the standard agreement perspective applies in accordance with freedom of contract vide Article 1320 jo Article 1338 of the Civil Code as long as it does not lead to eliminating the responsibility of the business actor (exenorasi classula), but considering the lease agreement unilaterally determined by the lessor, the position of the lessee is still weak legal protection through legal action that can be carried out, for example filing a claim for compensation, costs and interest

EFEKTIVITAS ASAS PACTA SUNT SERVANDA SAAT TERJADI KEADAAN MEMAKSA (FORCE MAJEURE) DALAM HUKUM PERJANJIAN INDONESIA

The effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law becomes an important subject when force majeure occurs. This principle implies the obligation of parties to comply with the agreed contents of the agreement. However, when events beyond control, such as natural disasters, war, or other unexpected events (force majeure), this principle becomes tested. In this context, the effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law requires a balance between adherence to the agreed agreement and recognition of unforeseen circumstances that may affect its implementation. Awareness of the legal implications of force majeure is very important for the parties involved in the agreement, to maintain clarity, fairness and order in the implementation of the agreement amid the dynamics of unforeseen circumstances. The Pacta Sunt Servanda principle in Indonesian treaty law is intended to provide equal rights for all parties involved in a contract. However, in force majeure conditions, this principle may not apply due to circumstances that prevent contract compliance. By using a normative juridical approach, this research aims to evaluate the effectiveness of the Pacta Sunt Servanda principle in force majeure. The results of this study show that force majeure is one of the factors that affect the effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law. Therefore, the application of the Pacta Sunt Servanda principle can be delayed due to force majeure. The consequences are the loss of rights and obligations of the agreement and the non-fulfillment of the rights and obligations stipulated in the contract.

Constitutional Acquisition and Regulation of Property, Investment Treaties and Expropriation in Africa

Abstract The reforms of investment treaties include the incorporation of flexibilities into standards of investment protection such as indirect expropriation to accommodate public interest regulatory autonomy. In this article, I assess the efficacy of these reforms by analysing the intersection of constitutional provisions on compulsory acquisition and regulation of property in selected African constitutions and expropriation provisions in investment treaties. I argue that indirect expropriation provisions in investment treaties are unconstitutional. I also argue that the new generation investment treaties which incorporate these exceptions do not preserve African States’ authority to acquire and regulate private property. The exceptions do not resolve the incompatibility between the constitutional authority to take and regulate property without paying compensation and African States’ investment treaty obligations on indirect expropriation. By providing for precatory and inefficacious exceptions to indirect expropriation while leaving intact substantive standards of investment protection, the reforms of investment treaties preserve an investment treaty law and arbitration regime that remains skewed towards investors and covered investments.

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.