Treaty Regime Research Articles

Successful conservation and management of kelp forests requires more ambitious use of international law

AbstractKelp forests are the world's most extensive vegetated marine ecosystems. They provide critical ecological functions as well as valuable ecosystem services for human societies. Yet, kelp forests have been largely overlooked in international environmental law. There are no specific treaties focused on kelp, and they have only benefited to a limited extent under existing regimes. This article analyses the treatment of kelp in international environmental law and finds that there are few formally listed sites containing kelp forests and that several treaty regimes could be better utilised for their benefit. The article concludes by outlining more ambitious ways in which international environmental law can better contribute to the conservation and management of kelp forests and other marine ecosystems facing similar futures. This research seeks to shed light on kelp forests and in doing so seeks to contribute to the growing body of multi‐disciplinary literature on kelp and the role that law can play in securing its future.

Fairness as Balance: Investor Obligations and Investment Treaty Reform

The normative asymmetry between the rights and obligations of investors and host states under investment treaties has been a key reason for the treaties’ common characterization as “unbalanced”. While initially a description of a justified treaty design, imbalance has since become a central component of the legitimacy challenges to the investment treaty regime: a normative demand of the treaties’ realignment. Identifying the imbalance critiques of investment treaties as fairness-based critiques concerning the distributive implications of investment treaties, the article considers to what extent including provisions on investor conduct in investment treaties may address the concerns about potential unfairness in the allocation of rights and obligations under these treaties. In particular, the article argues that understanding the imbalance critiques as concerns of distributive justice enables the assessment ofinvestment treaty design innovations and the alternative ways in which these instruments could be structured to produce different distributive outcomes.

NWFZ Treaty Regime and Denuclearization of the Korean Peninsula

NWFZ Treaty Regime and Denuclearization of the Korean Peninsula

Cyber Shadows over Nuclear Peace: Understanding and Mitigating Digital Threats to Global Security

This article examines the intersection of cyber warfare and nuclear security, emphasising the significance of addressing the emerging threats to nuclear facilities from cyberattacks. The article highlights a gap in the international security architecture: the absence of an international regime for nuclear cybersecurity. This deficiency challenges the Non-Proliferation Treaty regime, threatening global peace and stability by undermining the treaty’s objectives and increasing the risk of nuclear proliferation and misuse. The research underscores the need for an international regime that integrates cybersecurity with nuclear security. It calls for the involvement of middle powers in international negotiations and consensus-building, alongside exploring innovative diplomatic strategies and robust legal frameworks. The article seeks to contribute to the discourse on international security, advocating for a coordinated global response to safeguard against the catastrophic consequences of digital threats in the nuclear domain.

‘65년 체제’의 확립과 한일 양국의 청구권협정에 대한 해석

‘65년 체제’의 확립과 한일 양국의 청구권협정에 대한 해석

Second Thoughts? The International Adjudication of Environmental Disputes 30 Years Later

Abstract The role of international adjudication with respect to environmental disputes has been a matter of significant debate, particularly since the late 1980s. Scepticism about the creation of an international environmental court, the lack of use of specialised environmental chambers and the rise of non-compliance procedures largely supported the view that international adjudication had a limited role to play in this context. This conventional view is today being reconsidered. This is due in part to the surge in domestic climate litigation but also, as argued in this brief contribution, to the potential of international adjudication to address the challenges that had once supported arguments against it, namely (1) the ambiguity and indeterminacy of substantive provisions in multilateral environmental treaties; (2) States’ own capacity limitations to discharge their duties under such treaties, and (3) the need for treaty regimes to accommodate changing social, economic, political and, of course, environmental circumstances.

Treaty Regime of Ocean Fertilization: gaps and solutions

Treaty Regime of Ocean Fertilization: gaps and solutions

Competitive observance by the Russian Federation and the USA of the 1967 Outer Space Treaty

Introduction. Thе Russian Federation and the USA, being parties to the 1967 Outer Space Treaty, in their national legal acts refer to this source. Each of these states recognizes that the 1967 Outer Space regime is to be perfected, while having different legal outer space policy. The USA is a leader of the military outer space infrastructure and of creation national outer space legislation and separate international agreements (“The Artemis Accords”), thus imposing its own track to develop the 1967 Treaty.Materials and methods. This research addresses relevant international documents on international space law as well as acts of national legislation pertaining to the topic. Research results. In modern political conditions the quality of a state defense and its economic development is linked to the efficiency of the outer space infrastructure, including communication and reconnaissance satellites. While the U.S. intends to achieve military supremacy in the outer space, the 1967 Treaty seems to be a barrier to such intention although the U.S. provides its own interpretation of the Treaty. Another significant area of competition between Russia and USA in the outer space legal policy is the observance of the natural resources treaty provisions. According to the USA, a state is entitled unilaterally exploit the space resources, and its persons are entitled to commercial use of such resources based on national law. This position of the United States resulted in creation of its national legislation opportunities for natural resources activities in outer space. The Russian Federation continues to defend multilateral approach to the exploitation of space resources and to call upon strictly observance of the 1967 Outer Space Treaty. There are also competitive legal positions of the USA and Russia relating to the notion of “common province of mankind” provided by the 1967 Treaty.The main results. In this context, the paper after providing prolegomena to the competitive principle in international law, suggests some theoretical ideas for perfecting of the legal position of the Russian Federation as a response to the modern outer space legal policy of the USA.Discussion and conclusions. In the legal literature on this issue different views are assessed – from a radical rejection of the US model of behavior and continuation of efforts to strengthen the 1967 Treaty regime, to proposals to adopt a new national Russian legislation providing rights of persons to exploit the natural resources of celestial bodies, thus provid-ing incentives for private investors. This track leads to more competition with the USA, observing at the same time the 1967 Treaty as the “corpus juris specialis”.

The Investment Treaty Regime and Public Interest Regulation in Africa

The Investment Treaty Regime and Public Interest Regulation in Africa

The Gewirthian Needs-Based Hierarchy: A Concept for Prioritising Conflicting Norms in International Law

ABSTRACTInternational law is divided into functionally detached treaty regimes which lack clear hierarchies between them. Specific rules on how to prioritise among conflicting norms, e.g. between international patent rights under the World Trade Organisation TRIPS regime and the fundamental right to health under United Nations human rights law, are missing. Political sentiments and economic policies often tend to prioritise business interests, including the protection of pharmaceutical patents held by multinational corporations, over contrasting societal interests, which has direct negative impacts on the realisation of economic and social human rights. In this context, this article takes account of moral philosophical reasoning, with particular consideration to the needs-based hierarchy established by Alan Gewirth in his conceptualisation of the principle of generic consistency. The article shows how, when applied to the concept of human dignity, the needs-based hierarchy can provide guidance on adequate prioritisation among conflicting legal norms, suggesting the necessity of protecting the most fundamental human needs over less essential economic interests.

Dispute Over the Status and Use of the Waters of the Silala (Chile v. Bol.) (I.C.J.)

On December 1, 2022, the International Court of Justice (ICJ) rendered its judgment in the Dispute Concerning the Status and Use of the Waters of the Silala (Chile v. Bolivia). There is no basin agreement governing the Silala, and Chile and Bolivia have ratified neither the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses nor the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes. In the absence of a treaty regime applicable to the waters of the Silala River, the Court had the opportunity in this case to consider the legal framework applicable to international watercourses under customary international law.

Harmonizing Dispute Resolution Mechanisms: Enhancing Efficiency and Synergy between WTO and ISDS System

This research article explores aligning and optimizing dispute resolution mechanisms in international law, particularly within the World Trade Organization (WTO) and Investor-State Dispute Settlement (ISDS) contexts. Addressing challenges arising from the "spaghetti bowl effect" of multiple treaty regimes, it examines the interplay between WTO and ISDS systems, aiming for harmonization and reduced jurisdictional inconsistencies. Traditional coordination methods are evaluated, revealing limitations in adapting to this evolving paradigm. Instead, an "articulation clause" and the "principle of comity" are proposed as innovative approaches for rationalizing dispute resolution. These strategies aim to transcend rivalry between WTO and ISDS mechanisms, expediting impasse resolution in the WTO Appellate Body. The study promotes a strategic shift, encouraging stakeholders to view dual mechanisms as mutually advantageous. This pragmatic outlook empowers informed decision-making, enhancing the global rule of law's predictability, efficiency, and integrity. The ultimate goal is strengthening the WTO's dispute resolution framework and ISDS mechanism, contributing to a more streamlined and cohesive international dispute resolution landscape. The qualitative research methodology has been applied to the following article.

The ‘Total-Legalization’ of Cannabis in Germany: Legal Challenges and the EU Free Market Conundrum

Abstract The German government plans the ‘total-legalization’ of cannabis i.e. a state regulated market for recreational cannabis by 2024. Unlike Canada or Uruguay the German legislator plans to comply with the international treaty regime which strictly prohibits cannabis except for medical and scientific purposes. Concerning the equally prohibitive EU law the German government coalition follows a legal strategy of re-interpreting relevant provisions and exploiting legal loopholes. This article will outline this strategy and analyse the complex problems it raises under international and EU law. It will demonstrate that the German government has embarked on a risky endeavor as the international treaty regime as much as EU crime and drug policies give little room for legal maneuvers. Major issues such as the curbing of drug tourism and the compliance with free market rules remain widely unsolved.

National climate litigation and the international rule of law

AbstractThis article assesses the implications of national climate litigation for what is termed ‘the international rule of law’. Starting from the finding that the current international climate treaty regime lacks several elements of an international rule of law, such as legal bindingness, clarity, and justiciability, the author explores what national courts contribute to filling these gaps. Deviating from a linear progression narrative, which is prevalent in existing literature, this article provides a more nuanced and complex picture. Whereas successful climate litigation is hardly imaginable without reliance on internationally agreed-upon facts – such as reports by the Intergovernmental Panel on Climate Change and global average temperature levels deemed ‘dangerous’ – doctrinally decisions do not represent a turn toward a stricter rule of international climate law. Instead of applying and progressively developing climate treaties, courts thus far have primarily used these provisions only to develop national constitutional law and regional human rights law. The created system of highly contextual national rule(s) of climate law is a fragmented one which is regionally limited to a few states predominantly located in Western Europe. Consequently, it is a far cry from a truly global rule of international climate law.

The grammar of monitoring and enforcement mechanisms in international conservation: A comparative institutional analysis of four treaty regimes

AbstractOf enduring interest to social scientists is better understanding institutional design. Formal institutions (e.g., treaties and regulations) convey salient governance information, including actors' required, allowed, or prohibited actions, and monitoring and enforcement mechanisms to foster institutional compliance with those actions. Yet, few studies have compared these features in international instruments. Addressing this gap, this study utilizes the Institutional Analysis and Development (IAD) framework's rule typology and the Institutional Grammar (IG) to compare the stringency and robustness of the formal monitoring and enforcement mechanisms outlined in four conservation treaties: The International Convention on the Regulation of Whaling; the Convention on International Trade in Endangered Species, the Convention on Migratory Species, and the Convention on Biological Diversity. Doing so revealed the mechanisms' theoretical ability to manage species' appropriation levels and treaty opt‐outs (e.g. reservations/objections), thwart biodiversity losses, and meet their conservation objectives. Findings include (1) identification of verbs and semantic constraints that dilute legally mandated actions to recommended outcomes; (2) a divide among treaty regimes by specificity of the required/permitted/recommended actions assigned to actors; and (3) enforcement mechanisms that require member states to take punitive action against non‐compliant national actors vis‐a‐vis regimes with minimal to no enforcement requirements. This study complements existing institutional design, international relations, and legal scholarship by illustrating the IG's and IAD's utility to describe the treaties' formal monitoring and enforcement design features. It also provides a better understanding of formal international conservation governance which may be useful to policy designers and conservation practitioners.

Antarctica: geopolitical challenges and institutional resilience

ABSTRACT The success of the Antarctic Treaty regime over more than 60 years provides the opportunity to assess the relationship between the maintenance of national interests and cooperation between Antarctic states. Over these six decades challenges to the Antarctic Treaty and the evolving Antarctic Treaty System have emerged. These challenges have arisen from within the system itself, most notably in the overturing of the proposed convention to regulate mining and its replacement with a comprehensive environmental protection regime. The system has also faced external challenges; a good example being through the “Question of Antarctica” debate within the United Nations General Assembly. Internal and external challenges have been addressed and, in many ways contributed to revitalising the regime, through adroit diplomacy and enduring commitment to sustaining the Treaty’s principles. This provides the key to the paper’s central argument that system resilience and adaptability has been undervalued in contemporary framings of Antarctic geopolitics that have in recent years tended to highlight tensions and divergent views.

Investment Court System: A Cure for the ‘Broken’ ISDS

This paper discusses the EU Commission’s proposal to establish a ground-breaking, two-tier Investment Court System in the Section 3 of the Commission’ draft TTIP to address concerns about systemic deficiencies looming behind the current ISDS (mainly lack of legitimacy, consistency and transparency) by bringing the private model of investment dispute settlement back to the public domain, as well as providing for an appellate mechanism to harmonise inconsistency in rulings and correct erroneous decisions. This undoubtedly contributes to develop a more coherent investment arbitration body of law, restoring predictability and faith in investment treaty regime, and therefore boosts foreign investments and economic growth.

Brazil’s New Investment Treaty Model: Why Now?

The investment treaty regime, unlike other economic regimes, lacks common substantive multilateral rules and depends on countries signing bilateral or plurilateral investment treaties. As the regime presented a pro-developed country bias, developing countries, especially in Latin America, avoided signing investment treaties up to the 1980s. Brazil followed this trend and did not start an investment treaty program until the late 1990s. However, the treaties never entered into force. The country also avoided acceding to the World Bank agency responsible for investment arbitration proceedings - the International Centre for Settlement of Investment Disputes (ICSID). In 2015, Brazil started a new investment treaty program. However, the timing seems counterintuitive. The investment treaty regime had already been criticized, including inefficiency in attracting foreign investment, the potential to encroach on countries’ regulatory sovereignty and the lack of legitimacy of its investor-state dispute settlement (ISDS) procedure. Furthermore, the favorable foreign economic scenario did not force the country to seek an inflow of foreign capital at that time. The new Cooperation and Facilitation Investment Agreement (CFIA) is presented as an investment treaty model for developing countries, since it responds to major criticisms to the investment treaty regime, and at the same time meets the demands of an important domestic interest group, the Brazilian industrial sector, for a legal framework that mitigates the political risk of its increasingly internationalized operations. Brazil’s CFIA may be viewed as a model that other developing countries could emulate in the face of the failure of the traditional paradigm of investment dispute settlement.

The Strategic Nuclear Treaty Regime at a Crossroads. The (Im)Possible Search for a New Point of Balance?

"The qualitative and quantitative balance in strategic nuclear capabilities between major global nuclear-armed states had been the subject of a longstanding international bilateral and multilateral treaty regime, which since the onset of the 21st century has undergone a process of continual degradation. With the gradual establishment of a more confrontational multipolar world order, the treaty regime as well as the guarantees it provided for international security have come into further peril. The present paper will examine the defining characteristics of the nuclear treaty regime, the factors leading to a point of balance in preceding decades between the nuclear superpowers of the United States of America and the Russian Federation, and the transformational factors, which have destabilised the balance in contemporary times. Furthermore, the paper will extend the discussion on the future of nuclear arms control to the changing geopolitical landscape and the rise of new major global powers such as the People’s Republic of China. Ultimately the paper, attempts to establish the framework of the future evolution of the nuclear arms debate and the possibilities of reaching a new point of stability and deterrence between the mentioned state actors."

Regimul tratatelor nucleare strategice la răscruce. Căutarea (im)posibilă a unui nou punct de echilibru?

"The qualitative and quantitative balance in strategic nuclear capabilities between major global nuclear-armed states had been the subject of a longstanding international bilateral and multilateral treaty regime, which since the onset of the 21st century has undergone a process of continual degradation. With the gradual establishment of a more confrontational multipolar world order, the treaty regime as well as the guarantees it provided for international security have come into further peril. The present paper will examine the defining characteristics of the nuclear treaty regime, the factors leading to a point of balance in preceding decades between the nuclear superpowers of the United States of America and the Russian Federation, and the transformational factors, which have destabilised the balance in contemporary times. Furthermore, the paper will extend the discussion on the future of nuclear arms control to the changing geopolitical landscape and the rise of new major global powers such as the People’s Republic of China. Ultimately the paper, attempts to establish the framework of the future evolution of the nuclear arms debate and the possibilities of reaching a new point of stability and deterrence between the mentioned state actors."