Treaty Provisions Research Articles

Constitucionalismo transformador y derecho internacional de inversionesTransformative constitutionalism and international investment law

Abstract International investment law faces five core legitimacy challenges: the state-dependency challenge, the human and constitutional rights challenge, the equality challenge, the standard of protection challenge, and the investor state dispute settlement system challenge. This article endorses the claim that constitutional courts can contribute to the solution of those legitimacy challenges when they exercise the power to review the constitutionality of international investment treaties. From a transformative perspective, constitutional courts of host states can: (i) create public deliberation and raise awareness concerning the legitimacy challenges of international investment law; (ii) grant equal treatment to national and foreign investors; (iii) require governments to negotiate less open-textured provisions in international investment treaties; (iv) safeguard the protection of human and constitutional rights, and other common goods; and (v) raise due process, predictability, transparency, and proportionality standards concerning the investor state dispute settlement system. These judicial undertakings can strengthen the bargaining power of host executive branch authorities in the negotiation of international investment treaties and can narrow down the space of discretion of international investment arbitral tribunals. Both outcomes could render international investment treatises’ creation and enforcement more legitimate.

The Dispute over the Geographical Application of the Svalbard Treaty: Into a New Phase, An Essay in Honor of Ted L. McDorman

Under the 1920 Treaty concerning the archipelago of Spitsbergen (Svalbard Treaty), the contracting parties recognize the full and absolute sovereignty of Norway over the archipelago. The sovereignty is to be exercised subject to the stipulations of the Treaty, which include equal rights of the contracting parties to fish and hunt on the territory of Spitsbergen and its territorial waters. Consistent with the developments of the law of the sea, Norway has claimed sovereign rights over the continental shelf and established 200 nautical miles (NM) zones off its coast, including Svalbard. Norway established a 200 NM Fisheries Protection Zone off the coast of Svalbard. Several contracting parties claim that the equal rights under the Svalbard Treaty are applicable in the maritime zones claimed or established after 1920. This is disputed by Norway by referring to the wording of the Treaty, which stipulates that it is applicable within the 12-NM territorial waters. Owners and captains of vessels flagged in other contracting parties have protested and argued that the arrest and prosecution for illegal fishing in the 200-NM zone off Svalbard violated their equal rights of fishing. The Court had not addressed the question of the applicability of the Treaty provisions until 2023. In a civil case before the Supreme Court, a Latvian shipowning company argued that the snow crab regulations on the continental shelf in the Barents Sea were void as they violated the equal rights of contracting parties under the Svalbard Treaty to fish on the continental shelf. The Supreme Court concluded that the treaty provisions were not applicable beyond the 12-NM territorial sea of the archipelago. An attempt by the same company at international litigation through investment arbitration was also unsuccessful. As the dispute issue is settled within the Norwegian legal system, the dispute enters into a new phase.

Study on the Methods of Treaty Interpretation By Domestic Courts

In the context of global integration, domestic courts are faced with an ever-increasing demand for treaty interpretation and application, which is a realistic way to enhance the authority and credibility of the Chinese judiciary. Based on this, we discuss the challenges faced by domestic courts in the specific application of treaty interpretation methods, and put forward suggestions for improvement in response to these problems. These challenges include conflicts and inconsistencies between methods of interpretation, the lack of systematic and comprehensive rules on methods of interpretation, and limitations on the use of dynamic methods of interpretation. In order to overcome these dilemmas, the following recommendations are made: the establishment of a diversified system of interpretation methods; the construction of uniformly applicable rules of interpretation methods; and the reasonable use of dynamic interpretation methods. The implementation of these recommendations will help domestic courts to better respond to cases involving international treaties and, in practice, ensure that treaty provisions are correctly and fairly implemented.

Environmental challenges and economic cooperation between Ukraine and the EU: prospects for sustainable development

The article is dedicated to analyzing the cooperation between Ukraine and the European Union, which began with the signing of the Partnership and Cooperation Agreement in 1994 and reached a new level after the signing of the Association Agreement in 2014. The focus is on the impact of this agreement on Ukraine’s domestic and foreign policies, particularly in the context of sustainable development and ensuring environmental security. The article examines the role of international agreements in regulating Ukraine’s environmental policy, particularly the principles of preventive measures and the use of natural resources within the framework of sustainable development. Despite the formal incorporation of relevant provisions in international treaties, the real situation regarding environmental security remains challenging due to the conflict between the economic interests of developed countries and transnational corporations and the demands of environmental protection. The article separately addresses the influence of international law on the development of Ukraine’s energy policy and its integration into the pan-European energy space. The importance of transitioning to renewable energy sources and the role of the European Union in financing and supporting such projects are analyzed. It is noted that sustainable development and environmental protection should become priorities within the framework of Ukraine’s energy security policy. The article also outlines the main challenges Ukraine faces in the context of international environmental security, particularly the insufficient effectiveness of international organizations in recognizing and counteracting environmental crimes. Despite this, the importance of cooperation with the EU to achieve a stable deceleration of environmental degradation is emphasized.

Solidarity as a Political Determinant of Health: Insights from EU Competition Policy

Context: The connection between law and political determinants of health is not well understood, but nevertheless it is suggested that the two are inseparable, and this represents an upstream level with scope for influencing other determinants of health (particularly social determinants). Solidarity underpins European health care systems, and given its clear link with redistribution, it can be seen as a means for addressing health inequities. As such, solidarity may be seen as a political determinant of health in the specific context of European Union (EU) competition policy. Methods: A range of EU case law, treaty provisions, and European Commission publications relating to EU competition policy are analyzed. Findings: Solidarity is typically juxtaposed as antithetical to competition and thus as underpinning exceptions to the applicability of prohibitions on anticompetitive agreements, abuse of dominance, and state aid. Case law indicates an additional dynamic between definitions of solidarity at the EU and national levels. Conclusions: This analysis leads to two groups of considerations when framing solidarity as a political determinant of health in the EU competition policy context: first, the predominance of solidarity suggests it may shape competition reforms; second, the EU–member state dynamic indicates less EU-level reach into national competition reforms in health care than may be expected.

ASPECTS OF SCIENTIFIC RESEARCH IN UNIVERSAL ENVIRONMENTAL TREATIES: LEGAL AND ECONOMIC ANALYSIS

The article emphasises that aspects of international legal cooperation in the field of scientific research have not yet been the subject of a systematic, comprehensive scientific study either in the context of international law doctrine or in relevant publications. The subject of the study is the legal regulation of scientific research in universal international environmental treaties, with the aim of identifying the specific features of such international legal mechanisms. The paper examines the challenges and paradoxes faced by international environmental law in regulating scientific research as a process, as well as in balancing scientific research with the practical needs for appropriate resources. The research uses hermeneutical, prognostic, comparative and systemic analysis of relevant international treaties as components of the modern system of international law. It applies a complex set of methods, including analysis and synthesis, structural and formal-legal methods, as well as scientific deduction and induction approaches. The combination of these methods provides a thorough examination of how international environmental treaties regulate scientific research. The methodology includes a hermeneutic approach to interpret the language and provisions of various environmental treaties, a predictive approach to forecast potential developments and the outcomes of current regulation, a comparative analysis to identify similarities and differences between different treaties, and a systems analysis to understand how these treaties fit into the broader system of international law. Taken together, these methods provide a reliable basis for assessing the current state and future directions of international legal cooperation in environmental research. The main objective of the article is to reveal the unique characteristics and complexities inherent in the international legal mechanisms governing scientific research under environmental treaties. It aims to highlight the current challenges and paradoxes faced by international environmental law in this context. These include the need to address global environmental problems with often limited and unreliable scientific data, the need to respect and encourage scientific research, and the imperative to balance the search for scientific knowledge with the practical needs of natural resources. The results of the study show that environmental conventions reflect several important challenges. One of the main challenges is to address global environmental issues in the face of a lack of reliable scientific information, while respecting scientific research and its results. Another crucial challenge is to maintain a balance between promoting scientific research and meeting the practical resource needs of humanity. The author posits that international environmental law sources represent an enduring endeavour to achieve equilibrium in the formation of convention bodies. This equilibrium strives to reconcile the sovereign interests of participating states with the necessity of maintaining a high level of expertise within relevant commissions and committees. In conclusion, the paper emphasises the necessity for the continuous development and refinement of legal regulation pertaining to scientific research within the field of international environmental law. This is in order to effectively address the dynamic and complex interplay between scientific advancement and environmental sustainability.

Indo-Nepal Treaty of 1950: A Realist Perspective

The Indo-Nepal Treaty of Peace and Friendship, signed on July 31, 1950, between Nepal and India, was a landmark agreement aimed at fostering strong bilateral relations. The treaty facilitated free movement, residence, and business opportunities across borders, thereby enhancing mutual security and cooperation in the post-colonial South Asian context. Over the years, it has played a crucial role in promoting economic cooperation, defense collaboration, and cultural exchange. However, the treaty has also become a subject of debate due to shifting geopolitical dynamics and internal political shifts. This paper critically explores the treaty's influence on India-Nepal relations, focusing on its contributions to trade, investment, and defense collaboration. Despite these achievements, its relevance is increasingly questioned due to unresolved border disputes, China's growing presence in South Asia, and political instability within Nepal. The analysis suggests that revisiting and revising the treaty's provisions is essential to address these contemporary challenges. Ultimately, the study calls for a pragmatic approach that aligns the treaty with current geopolitical realities, ensuring a resilient and mutually beneficial partnership between India and Nepal. By adopting a realist perspective, this analysis underscores the strategic importance of adapting bilateral agreements to evolving regional dynamics.

The right to peaceful possession of property in conditions of international armed conflict

The article is devoted to the analysis of the provisions of international human rights law and international humanitarian law regarding the protection of the right to property, in particular the permitted limitations of this right, the relevant practice of international human rights courts and international criminal tribunals, the connection between the institution of derogation and the law of armed conflicts, as well as problematic issues of the protection of the right to property damaged during the russian-Ukrainian armed conflict. The author considers the provisions of some international treaties, which provide for the protection of the right to own property in peacetime, as well as the case-law of the European Court of Human Rights related to the violation of the right of applicants to own their property in accordance with Protocol No. 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms in connection with an international armed conflict or a situation of occupation. The author also analyzes the provisions of some sources of international humanitarian law regarding property as an object that must be protected during armed conflicts, in particular in occupied territories, and also provides examples of cases of international criminal tribunals, in whose decisions the destruction of property was recognized as a component of crimes against humanity. The author examines the question of the relationship between the sources of international human rights law and international humanitarian law in the context of the protection of the right to peaceful possession of property. The peculiarities of the institution of derogation in the context of the right to property in the conditions of an international armed conflict are analyzed. Ukraine’s derogation from its obligations under international human rights treaties, including the right to peaceful possession of property, in the conditions of russian armed aggression, is studied. In addition, in the context of the armed conflict between Ukraine and russia, the objects of property rights and the interested subjects of the right to property, which is violated or limited as a result of military operation, are singled out, and the collective dimension of the right to property, which was damaged during the russian-Ukrainian armed conflict, was investigated.

Research on Counterclaim Rules in International Investment Arbitration

<p class="MsoBodyText" align="justify">In recent years, with the rapid development of international investment, inevitably, the investment disputes between foreign private investors and the host country are increasing. From the results of the cases submitted to ICSID arbitration, it can be seen that the investor’s winning probability is extremely high, which leads to the imbalance of interests between investor and the host country, and it is difficult to protect the legitimate rights and interests of host country. In this case, the host country may initiate counterclaim arbitration proceedings against the investor’s arbitration request according to the provisions of international investment arbitration treaties, international investment agreements or domestic laws to offset the investor’s request. However, in the practice of examining and dealing with the counterclaim of the host country, the arbitration tribunal often has strict requirements on the jurisdiction and acceptance conditions of counterclaims. On the one hand, the counterclaim clauses involved in the convention are vague, and the standards of “connection” and “consent” are difficult to identify. On the other hand, the lack of investor’s obligation clauses in investment agreements makes it difficult to obtain strong legal support for counterclaims. In order to solve the application dilemma of the host country’s counterclaim rules in practice, the arbitral tribunal should give priority to factual relevance when judging whether the counterclaim is related to the original claim. The way of opposing the request for “consent” should be appropriately modified, and a broader identification standard should be adopted. On the one hand, the host country should strive to set up a special counterclaim clause in the investment agreement, and adjust the rights and obligations structure of both parties in international investment agreement.</p>

Reforms of the Financial System in the European Union –Towards a New Legal-Institutional Order

The combination of the legal documents including the 2021-2027 EU long-term budget, NextGenerationEU, andthe Own Resources Decision (3) (Decision of 14 December 2020 on the system of own resources of the EuropeanUnion, repealing Council Decision 2014/335/EU, Euratom of 26 May 2014 on the system of own resources of theEuropean Union) has been praised as a groundbreaking achievement and political success of the EU authorities,one whose importance is no lesser than that of the establishment of the EU’s common market. The package hasmarked a powerful turn in EU’s politics, in that it helps move the debts of the countries receiving funds fromNextGenerationEU as well as within National Recovery and Resilience Plans (NRRPs) outside their national budgetarysystems. As is emphasised in a number of EU documents, the increases in EU Member States’ deficits anddebts have been due to the financial and health crisis. However, how or in what ways the new own resources andnew outside-Treaty financial engineering might contribute to the funding and eventual repayment of NextGenerationEUdebt, has not been explained.In parallel, the aforementioned success has given the basis for further action in view of in-EU integration, as expressedin the project to amend EU Treaties. Work on the amendment will continue during the present EuropeanParliament’s term. Analysis of the directions of change in the Treaty provisions covering EU fiscal and monetarypolicies and the gradually remoulded model of EU funding form t he core of this present paper.

Corruption and foreign investments: Empirical lessons from treaties and arbitration cases

Abstract As legally binding instruments for the protection of cross-border investments, international investment agreements (IIAs) increasingly include anti-corruption provisions. This article empirically analyzes international investment agreements and the practice of investor–state tribunals related to corruption in foreign investments. It introduces a typology of treaty provisions and discusses their limited practical effectiveness and perverse incentives they create. The article also addresses the broader question of how to deal with corruption-related obligations of investors and states in the context of public international law. It presents and analyzes new empirical data showing that parties to investor–state disputes increasingly allege corruption, and states are responsible for most of such allegations. However, in most cases, tribunals either ignore such allegations or decide that they have not been proven. In the small number of cases where tribunals found allegations proven, they declined jurisdiction or declared the investor’s claim inadmissible. The article makes proposals on how international investment law can become more effective in tackling the supply and demand side of corruption and discusses the relevant obligations of investment tribunals.

Deconstructing Turkcell V Iran: The First Investment Treaty Claim against Iran

Once an arbitral tribunal is constituted, the preliminary issue to be decided is the question of jurisdiction and admissibility of the claim. At the pre-merit stage, the tribunal determines whether it has jurisdiction over the disputes to proceed with the substantive issues. In investment arbitration, the jurisdictional requirements are contained in bilateral investment treaties (BITs) and the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention) and municipal laws. This article critically analyses the first BIT claim against Iran by reconstructing the Turkcell arbitration case. The Turkcell case concerned complex questions of Iranian and international law concerning the jurisdiction of an arbitral tribunal over investment activities. The Turkcell case highlights the important issue of interpretation of treaty provisions concerning the definition of investment (ratione materiae) and investors (ratione personae).

Ubuntu, human rights and sustainable development: Lessons from the African Arbitration Academy’s Model Bilateral Investment Treaty

This paper provides a non-exhaustive analysis of the ubuntu-based human rights approach to sustainable development adopted recently by the African Arbitration Academy’s Model Bilateral Investment Treaty. The concept of ubuntu is used in this approach to sustainable development as an overriding principle for the interpretation, performance and enforcement of substantive treaty provisions, including investors’ human rights obligations. Through this original approach, sustainable development objectives are to be achieved in the host state by focusing on effective protection and implementation of human rights. Specifically, the study employs the methodology of legal analysis of provisions derived primarily from the model, the methodology of comparative analysis and the comprehensive study doctrine. The paper suggests that the ubuntu-based human rights approach has the potential to enhance the acceptance of human rights, effectively implement them and contribute to the achievement of sustainable development goals. This paper is an important contribution to the literature on sustainable development, the culturalisation of human rights and corporate human rights responsibility.

Some Observations on the ‘Ambulatory’ Nature of the Normal Baseline

Abstract From the start of the discussion about the implications of sea level rise for the entitlements of coastal States to maritime jurisdictional zones, the question of the interpretation of Art. 5 unclos (and the corresponding rule of customary international law) on the ‘normal’ baseline of the territorial sea became an essential element of the debate. The then generally accepted interpretation of Art. 5 assumed that this normal baseline, viz., the low-water line along the coast, when physically moving as a result of sea level rise, would have the effect of also moving the outer limits of the maritime zones. This interpretation became known as the ‘ambulatory’ baseline, and was inter alia adopted by the ila Committee on Baselines in the Law of the Sea and the ila Committee on Sea Level Rise and International law. However, this interpretation has recently been challenged by a few authors, as well as, more importantly, by some States. This contribution briefly examines State practice, and concludes that the normal baseline of the territorial sea is indeed ‘ambulatory’ under the current law as reflected in Art. 5 unclos. However, a significant change in the interpretation (and application) of this provision is developing in State practice, to the effect that coastal States affected by sea level rise should be allowed to maintain their current normal baselines, as determined in accordance with the provisions of unclos, notwithstanding future changes to the low-water line. If this changed interpretation is not also reflected in a change of the text of Art. 5 (which would involve an amendment of unclos under its articles 312 or 313), we may be witnessing an example of tacit amendment (modification) of a treaty provision by subsequent practice. At the same time the relevant rule of customary international law would then be changed as well.

The Second Treaty of Erzurum and the Ottoman-Qajar border problem and their influence on Blbas (1847-1880)

Blbas was a tribal union and consisted of Mamash, Mangur, Piran, San, Ramk, Hormzyar and Gowrk tribes in the nineteenth century. They mostly lived a semi-nomadic life in Garmian and the deserted areas caused not comply with the regulations and restrictions of the Ottoman and Qajar states. As their long-standing tradition with the drop in temperatures and getting cold, they were heading to the hot areas of the Ottoman State (South of Kurdistan), and with the rise in temperatures and decrease in the pasture, they were moving to the highlands of Qajar state (East of Kurdistan). The migration and movement of the Blbas tribes began to cross the border and violated the provisions of the peace treaties between them, so the two countries accused the Blbas tribes of being the source of instability and crossing borders. In their treaty and border protocols, both countries have consistently referred directly or indirectly to the Blbas, they planned to oblige the tribes to take orders from the central governments and be inhabited in a specific area. The Ottoman and Qajar states used different techniques to abide the Blbas tribes such as; joint military attacks, tricks and deceptions, and creating conflicts among them. All this reveals the fact that the tribes of Blbas never gave up while they have been located in an important geopolitical position. Their courage and lack of surrender to the continuous ambitions of both states, they have always lived in an unstable and chaotic situation. They have become the major issue of the treaties and documents of the time when the Ottoman and Qajar states had a decisive impact on the history of the events in the region.

Why the European Union Needs to Clarify and Codify its Engagement with Religion

Religion was outside the European Union’s original remit and the classic secular paradigm predicted it should remain there. However, the opposite happened: religion gradually seeped into the EU legal order. The 2009 Lisbon Treaty created a legal basis and political mandate for EU engagement with religion. This article shows the new treaty provisions represent a shift towards the post-secular paradigm, but implementation of this legal obligation lack coherence and has had mixed success. The case is made for a more systematic and orderly post-secular approach to EU policy and law making, which could help the EU reach certain key objectives.

Legal regulation of climate change in the context of global warming

The relevance of the problem stated in this article is due to the direct negative impact of the climate change, in particular the global warming, on most life-supporting human processes: production, agricultural sector, safe and secure dwelling of population, and more. The purpose of this article is to study the effectiveness and efficiency of harmonization of the national legislation of the developed countries in accordance with international legal treaties in the field of climate in the context of global warming. The formal legal method is the main one in the study of this issue, which allows making a legal analysis of the provisions of international legal treaties of both a general nature and special rules that relate to the carrying out of entrepreneurial activity, considering the minimization of negative impact on the climate change, as well as foundations for implementation of the carbon neutrality policy. As a result of research, it was made the legal analysis of the content of legal acts on the issue of climate change. The requirements for business entities were determined, provided for by the international legal agreements and leading to a decrease in the negative impact on the climate. In addition, it was made an analysis of the legal basis and feasibility of achieving the carbon neutrality in the developed countries until 2050. To a greater extent, the results of the study are of theoretical significance, since the generalization of requirements provided for by international law is the end result of the study, which together will lead to a decrease in the impact of global warming on climate change, states, business entities and individuals. In turn, the results of this study can be the basis for improving the mechanisms of influence on the climate both in the field of legal sciences and technical sciences. .

Principles of the victim’s representation in criminal proceedings

Based on the analysis of the provisions of criminal procedure legislation, provisions of international legal treaties, and European Union law, and on the basis of generalisation of theoretical positions of scholars, and also taking into account the proven experience of certain European States, it has been substantiated that the principle of victim representation is one of the fundamental principles of criminal proceedings. It has been proved that representation of victims in criminal proceedings is an indispensable guarantee of the principle of equality before law and court, access to justice and binding nature of court decisions, competitiveness of the parties and freedom to present their evidence to court and to prove their convincing nature before the court, etc. It has been determined that on the way to European integration, Ukraine may need to revise certain provisions of the institute of victim representation in criminal proceedings, in particular, to determine the grounds for mandatory free-of-charge participation of a victim’s representative, at least in some categories of cases. It has been argued that victim representation should be carried out in compliance with the general principles of criminal proceedings, as well as the principles of: voluntariness; legality; competence; initiative; cooperation and effective communication with other participants to criminal proceedings. It is suggested that these provisions should be used in further scientific research as a basis for reforming criminal procedure law in the context of introducing proven foreign practices into the victim representation activities. It has been determined that the prospects for further research should include the mechanisms for implementing international standards of victim representation, problematic aspects of victim representation in criminal proceedings, and the principles of representation of a witness, a civil plaintiff, and a civil defendant.

Allegiance in International Humanitarian Law: the duty of fidelity and the laws of armed conflict

Abstract Allegiance is a legal concept that seeks to regulate the duty of fidelity of individuals towards states. A particularity of allegiance is the fact that it has been repeatedly used in treaty provisions, as well as interpretation of rules, in the field of International Humanitarian Law. The fields in which it has been introduced are quite broad, from rules relating to Prisoner of War status, to defining the relationship between occupiers and occupied population, passing through rules on Protected Personal status for civilians, the internment of enemy aliens, rules on the conduct of hostilities, and deserters. The article analyses both the meaning of allegiance and how it has been used in International Humanitarian Law revealing some useful instances as well as a set of inconsistencies and potential perils for its use.

Defining directions for improving regulation of private law forms of technology transfer in the European Union

The object of this study is the existing regulatory approaches to the definition of private law forms of technology transfer in the law of the European Union, international treaties, and agreements. In the course of research and generalization of existing concepts, it was established that they are not unified and differ significantly. It has been proven that this does not meet the needs of technology transfer participants and destabilizes the technology transfer process. The expediency of improving the existing concept of defining private law forms of technology transfer by unifying them has been substantiated. Recommendations on the list of the main forms of technology transfer have been formed based on a systematic analysis of regulatory legal acts that determine the content of technology. A classification of the main private law forms of technology transfer has been proposed. Three main groups of private law forms of technology transfer were distinguished. The expediency of assigning each private law form of transfer to a certain group was substantiated. Directions for improving the current regulation of private law forms of technology transfer have been formed, by summarizing and supplementing them. The need to make changes to the provisions of such international treaties and agreements as the World Trade Organization Agreements, the Recommendations of the World Organization for the Protection of Intellectual Property, the Oslo Guidelines, the UNCTAD Recommendations, and the framework program "Horizon Europe" has been proven. The research was aimed at the formation of general theoretical foundations for the improvement of regulatory methods of identification of private law forms of technology transfer. The research results can be used in the formation of international normative acts, recommendations of international institutions, acts of national legislation and serve as a basis for further scientific research on these issues