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1
Charney, Jonathan I. "Universal International Law." American Journal of International Law 87, no. 4 (October 1993): 529–51. http://dx.doi.org/10.2307/2203615.
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In this shrinking world, states are increasingly interdependent and interconnected, a development that has affected international law. Early international law dealt with bilateral relations between autonomous states. The principal subjects until well into this century were diplomatic relations, war, treaties and the law of the sea. One of the most significant developments in international law during the twentieth century has been the expanded role played by multilateral treaties addressed to the common concerns of states. Often they clarify and improve rules of international law through the process of rendering them in binding written agreements. These treaties also promote the coordination of uniform state behavior in a variety of areas. International organizations, themselves the creatures of multilateral treaties, have also assumed increasing prominence in the last half of this century. They contribute to the coordination and facilitation of contemporary international relations on the basis of legal principles.
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Hepburn, Jarrod. "Domestic Investment Statutes In International Law." American Journal of International Law 112, no. 4 (October 2018): 658–706. http://dx.doi.org/10.1017/ajil.2018.85.
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AbstractAlongside now-controversial investment treaties, many states also maintain domestic investment statutes. Although these laws offer protections similar to investment treaties and are increasingly applied in investor-state arbitration, they have—unlike the treaties—attracted limited scholarly scrutiny. This article argues that investment statutes can plausibly be characterized either as unilateral acts in international law or as domestic law. The article examines the significant consequences that follow from these characterizations, providing the first comprehensive analysis of these hybrid statutes.
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Alvarez, José E. "The International Law of Property." American Journal of International Law 112, no. 4 (October 2018): 771–79. http://dx.doi.org/10.1017/ajil.2018.72.
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On the surface, the two books under review seem to have little in common. The Bonnitcha/Poulsen/Waibel (BPW) book, written by two legal academics and a political scientist, provides a balanced, fact-grounded account of international investment agreements (IIAs) and investor-state dispute settlement (ISDS). This is the “international treaty regime” in that book's title which the authors argue needs to be distinguished from the broader “international regime complex” that their book explicitly does not address, namely the number of other international instruments that at least incidentally also protect foreign investments (including, for example, political risk insurance, tax treaties, certain World Trade Organization agreements, and certain human rights treaties like the European Convention on Human Rights (ECHR)) (p. 7 and Figure 1.2). As one of the encomiums on its back cover page suggests, the BPW book seeks to answer the fraught competing contentions of defenders and critics of the regime that all too frequently generate “more heat than light.” Their book dispassionately synthesizes the available legal, economic, and political literature relevant to understanding the investment treaty regime's oft-proclaimed “legitimacy crisis.” It seeks to supply lawyers needing political context and political scientists needing legal knowledge with the unfiltered facts required to assess whether such a “crisis” exists and, if so, what the ways forward might be.
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Miron, Alina, and Paolo Palchetti. "Foreign Relations Law on Treaty Matters from Restatement (Third) to Restatement (Fourth): More a Filter Than a Bridge." European Journal of International Law 32, no. 4 (November 1, 2021): 1425–42. http://dx.doi.org/10.1093/ejil/chab094.
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Abstract The remarks contained in this article are a candid reading of Part III of the Restatement of the Law (Fourth): Foreign Relations Law of the United States (‘Treaties as Law of the United States’) through the lens of international lawyers who wonder about the role of international law in the US legal system. They turn essentially on the promise and peril of domesticating international law: Does foreign relations law as determined by Part III the Restatement (Fourth) promote compliance with international treaty law or does it rather emphasize constitutional law concerns that may limit its domestic application? To what extent do domestic judicial authorities give effect to treaties at the domestic level? Is the question of the self-executing character of a treaty provision exclusively a matter of domestic law or does it depend also on treaty interpretation? Our conclusion is that, on treaties, the Restatement (Fourth) marks a retreat in the engagement with international law from the Restatement (Third).
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Erne, Jaanika. "Conferral of Powers by States as a Basis of Obligation of International Organisations." Nordic Journal of International Law 78, no. 2 (2009): 177–99. http://dx.doi.org/10.1163/157181009x431749.
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AbstractThe article examines some traditional forms of conferral of powers on international organisations – by international treaties (“common” international treaties and constituent international treaties that can form the basis for further delegation) and for supranational law-making. The main conclusion is that although the agreed norms may be construed in the application processes, the formal determination of powers remains the formal basis of action.
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Graefrath, B. "The International Law Commission Tomorrow: Improving its Organization and Methods of Work." American Journal of International Law 85, no. 4 (October 1991): 595–612. http://dx.doi.org/10.2307/2203268.
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The history, operation and tasks of the International Law Commission (ILC) have often been described and its success in codifying general international law is well-known and widely acknowledged. The conduct of international relations today is unthinkable without such basic instruments, first drafted by the Commission, as the conventions on diplomatic and consular relations, the law of treaties and the law of the sea. Moreover, other ILC drafts that have not been adopted as treaties have had a long-term effect on the development of international law; for example, the Draft Declaration on the Rights and Duties of States, the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, and the Model Rules on Arbitral Procedure.
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McLachlan, Campbell. "INVESTMENT TREATIES AND GENERAL INTERNATIONAL LAW." International and Comparative Law Quarterly 57, no. 2 (April 2008): 361–401. http://dx.doi.org/10.1017/s0020589308000225.
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AbstractThe huge rise in the settlement of investment disputes by treaty has provoked an underlying question of great practical and theoretical importance: the relationship between the substantive standards protected in such treaties and general international law. This paper argues that the relationship is symbiotic: custom informing the content of the treay right; and State practice under investment treaties contributing to the development of general international law. It is the structured process of treaty interpretation which determines when and how reference to general international law may be made. Practice in this field supports a broader modern phenomenon, in which ‘general principles of law common to civilized nations’ may be informed not only by common principles of domestic law, but also by general principles of international law itself.
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Vandevelde, Kenneth J. "The Political Economy of a Bilateral Investment Treaty." American Journal of International Law 92, no. 4 (October 1998): 621–41. http://dx.doi.org/10.2307/2998126.
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One of the more remarkable developments in international law in the mid-1990s is not what it appears to be. The massive and sudden proliferation of bilateral investment treaties (BITs), now constituting a network of more than thirteen hundred agreements involving some 160 states, appears to reflect die triumph of liberal economics in the sphere of international investment. In fact, however, it constitutes only a momentary convergence of nationalist interests. If the BITs are to construct the liberal international investment regime they seem to promise, then they must be modified in important and substantial ways.
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Alvik, Ivar. "Concessions in International Law." Nordic Journal of International Law 91, no. 4 (December 5, 2022): 568–94. http://dx.doi.org/10.1163/15718107-91040003.
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Abstract The article examines the extent to which concessionary rights are protected under three different branches of international law; traditional customary law, the case law of the European Court of Human Rights, and arbitral practice under investment treaties. It reveals clear similarities with respect to when such rights are considered protected. However, it simultaneously argues that case law under investment treaties tends to adopt a less nuanced approach to the nature of such rights, almost invariably assuming them to constitute a kind of property. This again entails that the investor/concessionaire is seen to have a right to performance, and in effect to protection of his expectation interest. The article shows how this stands in contrast with a more nuanced perspective under the property provision of the echr, which better reflects the complexities of the issue under municipal law. While a failure to sufficiently respect an investor’s legitimate expectations may entail liability for the state, it is not necessarily comparable to expropriation of property and will usually entail only that the investor has a right to recover his reliance loss. The article argues that this may be reflective of a more general tendency in international investment law and arbitration also pointed to by others, where the modality of protection under investment treaties threatens to distort important nuances and concerns and overprotect foreign investment compared to other private rights and interests under municipal law.
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Dervovic, Medy, and Katharina Heinrich. "Law-Science Nexus in International Law-Making." Nordic Journal of International Law 92, no. 4 (December 19, 2023): 599–622. http://dx.doi.org/10.1163/15718107-bja10073.
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Abstract Integrating science in the making and implementation of international and regional treaties emerges as an essential component of modern and future international law-making amidst profound climatic, geophysical, and biological changes worldwide. The interplay between science and law or the law-science nexus within, inter alia, the international legal frameworks on climate change, biodiversity, and fisheries offers different levels of integration of science. In practice, subsidiary scientific bodies play a key role in enabling the dialogue between scientists and law/policymakers. However, persisting challenges remain, hampering the optimal implementation of the law-science nexus. Against this background and with comparative perspectives from the 2018 Central Arctic Ocean Fisheries Agreement, which entered into force in 2021, this article explores the evolution of the law-science nexus in international law-making. Furthermore, it highlights current challenges, namely the politicization of science and scientific uncertainty, and identifies opportunities to enhance this interplay. In shedding light on the importance of building an efficient law-science nexus, this article aims to inspire future international law-making to strengthen global and regional governance.
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Karas, Martin, and Katarína Brocková. "Investment treaties and national sovereignty: latest developments." Journal of International Trade Law and Policy 20, no. 2 (May 27, 2021): 127–41. http://dx.doi.org/10.1108/jitlp-01-2021-0001.
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Purpose The purpose of this paper is twofold. First, it identifies the latest trends in investment treaty making and determines the degree to which these trends affect the regulatory space of nation states. Second, it situates the conflict between investment protection and national sovereignty on the level of investment treaties within the wider theoretical framework of the debate between neoliberalism and neorealism in the field of international relations. Design/methodology/approach This research paper uses qualitative content analysis of international investment treaties with the aim of comparing a sample of new investment treaties with a sample of treaties from a previous generation. Findings The findings of the paper indicate that the language of investment treaties signed recently tends to promote greater regulatory space for the nation states compared to previous generation of treaties. However, the analysis also suggests that the changes still offer significant leeway to investment tribunals in interpreting the new treaty language, which could mean that the move towards greater national sovereignty in international investment law will not be as significant as many suggest. Originality/value Originality of the paper consists mainly in explicit connection it makes between international investment law and the debate between neorealism and neoliberalism in international relations theory.
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Dick, Katherine. "Exploring the Legal Status of Non-Governmental Organisations under International Energy Treaties." International Community Law Review 10, no. 2 (2008): 227–47. http://dx.doi.org/10.1163/187197308x311317.
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AbstractEnergy is now firmly on the global agenda. Many of the international measures that seek to tackle environmental issues arising from energy production and use, and achieve global order in energy trade and investment, have been developed in consultation with non-governmental organisations. However, despite the significant contribution of non-governmental organisations in this area, little attention has been paid to the formal legal status of such organisations under international energy treaties. A wide range of elements are examined in this article and found to support a limited legal status on the part of non-governmental organisations under international energy treaties created within the United Nations system, which implies a conditional 'right' to participate. However this right is limited to a right to participate in setting the policy framework of those treaties only, rather than a right to participate in judicial disputes. Moreover, the current legal treatment of NGOs differs in the specific issue areas of energy, given this area has been dealt with in an ad hoc manner by means of numerous, largely unrelated international energy treaties. In particular, NGOs have a very limited legal status, if at all, under international energy treaties created outside the United Nations system.
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Meron, Theodor. "Extraterritoriality of Human Rights Treaties." American Journal of International Law 89, no. 1 (January 1995): 78–82. http://dx.doi.org/10.2307/2203895.
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On the eve of the planned U.S. invasion of Haiti, responding to an appeal from the International Committee of the Red Cross to apply international humanitarian law, the United States stated that [i]f it becomes necessary to use force and engage in hostilities, the United States will, upon any engagement of forces, apply all of the provisions of the Geneva Conventions and the customary international law dealing with armed conflict.Further, the United States will accord prisoner of war treatment to any detained member of the Haitian armed forces. Any member of the U.S. armed forces who is detained by Haitian forces must be accorded prisoner of war treatment.
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Vo, Huan Tuong. "The Role of External Dynamics on Vietnam’s Ratification of the Convention Against Torture." Asia-Pacific Journal on Human Rights and the Law 24, no. 1 (February 15, 2023): 22–42. http://dx.doi.org/10.1163/15718158-24010002.
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Abstract This article analyses the case of Vietnam’s ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987 from 2013 to 2014. It aims to provide empirical evidence to inform current debates regarding the roles of external and internal dynamics, as well as relevant pressures and threats, in shaping state behaviour toward international civil and political rights treaties. Through this case study, it is argued that external dynamics played an essential role in influencing the socialist state’s ultimate ratification behaviour. In the context of globalisation, international political dynamics are determinant conditions for shaping the socialist state’s signing and ratifying activities toward this convention. In the case of Vietnam, the decision to accede to international human rights treaties should be considered the most appropriate response to the mounting political pressure from the international community.
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Petersen, Clement Salung. "Treaties in Domestic Civil Litigation: Jura Novit Curia?" Nordic Journal of International Law 80, no. 3 (2011): 369–402. http://dx.doi.org/10.1163/157181011x581236.
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AbstractMany international treaties regulate relations between states and private individuals (vertical treaty rules) and transnational relations between private individuals (transnational treaty rules), and domestic civil litigation often plays an important role in the enforcement of such rules. The actual impact of treaty rules in domestic civil litigation depends inter alia on the procedural principles governing the judicial application of law. In the European legal tradition of civil law, these principles are often expressed by the Latin adages “jura novit curia” (the court knows the law) and “da mihi factum, dabo tibi jus” (give me the facts, I give you the law). This article analyses how such procedural principles affect the obligations of domestic courts to apply vertical and transnational treaty rules in civil litigation and how, at the same time, international law can influence these domestic procedural principles in ways which create a complex relationship between international law and domestic civil procedure law.
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Kostyantyn, Savchuk. "Little-known pages of the history of the development of international legal thought: Ludwig Jacob (1759–1827)." Yearly journal of scientific articles “Pravova derzhava”, no. 31 (2020): 407–14. http://dx.doi.org/10.33663/0869-2491-2020-31-407-414.
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This article explores the contribution to the development of international law science by the outstanding German philosopher and economist Ludwig Kondratievich Jacob (Ludwig Heinrich von Jacob) (1759–1827), who for some time worked as a professor of diplomacy and political economy at Kharkiv University. L. Jacob's contribution to the development of the science of international law is not limited to reading lectures on positive international law, which was taught at the Department of Diplomacy and Political Economy in the first decades of Kharkiv University. L. K. Jacob prepared and published a series of textbooks on logic, grammar, psychology, aesthetics, rhetoric, political economy and law under the general title «Philosophy Course for High Schools of the Russian Empire», the seventh part of which was devoted to the problems of natural law, including international law. International Law Jacob interpreted it as part of natural law, which determines relations between independent states. Among the fundamental rights of the nation he distinguishes: 1) the right to independence, which includes the right to take possession of things that did not belong to anyone (it is clear that the author here justifies the right to take over the so-called res nullius, which was widely used in international law at the time, 2) the right to independence from any other nation; 3) the right to formal equality with any other nation. Considerable attention in his textbook L. K. Jakob attributes the right to international treaties, though he sees no distinction between treaties that nation conclude with other nations and with foreign individuals. Some emphasis is also placed on diplomatic law in the textbook. In the work of L. К. Jakob quite comprehensive doctrine of the right to war, which, again, is quite typical for proponents of natural law in the science of international law, is based on the identification of relations between independent nations (states) with relations between individuals in the natural state. His international legal doctrine is literally imbued with the ideas of the humanization of war – he strongly opposes treachery and the use of such means of war, which cause the enemy extreme pain, requires respect for the rights of prisoners of war.On the last pages of his textbook L. K. Jacob is installing an application in which he proposes the idea of uniting the independent states into a confederation, provided that each of them maintains complete independence in their internal affairs. In this project it is easy to see the impact of the ideas of the treatise «To Eternal Peace» by I. Kant, a consistent follower of the philosophical doctrine of which L. K. Jacob performed in his philosophical writings.
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García Olmedo, Javier. "RECALIBRATING THE INTERNATIONAL INVESTMENT REGIME THROUGH NARROWED JURISDICTION." International and Comparative Law Quarterly 69, no. 2 (April 2020): 301–34. http://dx.doi.org/10.1017/s0020589320000044.
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AbstractThe legitimacy crisis confronting the international investment regime has called for reforms to eliminate the asymmetric and troubled nature of investment treaties. These instruments grant extensive investor protections without offering reciprocal safeguards for host States wishing to preserve regulatory space. This article argues that any reform designed to redress imbalances in the existing regime should first aim at narrowing the personal jurisdiction of investment tribunals. Problematically, access to most investment treaties depends on broad nationality requirements, which have enabled investors to use corporations or passports of convenience to obtain treaty protection. This practice exacerbates the unbalanced relationship between host States and investors. It increases host States’ exposure to investment treaty claims and allows investors to circumvent newer, more State-oriented investment treaties. Using as an example the novel anti-nationality planning approach embraced in the 2019 Dutch Model BIT, this article suggests effective treaty mechanisms that States can adopt to restrict the range of investors that are entitled to claim.
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Arato, Julian. "The Private Law Critique of International Investment Law." American Journal of International Law 113, no. 1 (January 2019): 1–53. http://dx.doi.org/10.1017/ajil.2018.96.
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AbstractThis Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.
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Gelber, Katharine. "Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case." Australian Journal of Politics and History 45, no. 3 (August 1999): 330–45. http://dx.doi.org/10.1111/1467-8497.00068.
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Allee, Todd, and Clint Peinhardt. "Evaluating Three Explanations for the Design of Bilateral Investment Treaties." World Politics 66, no. 1 (December 29, 2013): 47–87. http://dx.doi.org/10.1017/s0043887113000324.
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Although many features of bilateral investment treaties (BITs) are consistent from one agreement to the next, a closer look reveals that the treaties exhibit considerable variation in terms of their enforcement provisions, which legal scholars have singled out as the central component of the treaties. An original data set is compiled that captures three important treaty-design differences: whether the parties consent in advance to international arbitration, whether they allow treaty obligations to be enforced before an institutionalized arbitration body, and how many arbitration options are specified for enforcement. Drawing upon several relevant literatures on international institutions, three potentially generalizable explanations for this important treaty variation are articulated and tested. The strongest support is found for the theoretical perspective that emphasizes the bargaining power and preferences of capital-exporting states, which use the treaties to codify strong, credible investor protections in all their treaties. Empirical tests consistently reveal that treaties contain strong enforcement provisions—in which the parties preconsent to multiple, often institutionalized arbitration options—when the capital-exporting treaty partner has considerable bargaining power and contains domestic actors that prefer such arrangements, such as large multinational corporations or right-wing governments. In contrast, there is no evidence to support the popular hands-tying explanation, which predicts that investment-seeking states with the most severe credibility problems, due to poor reputations or weak domestic institutions, will bind themselves to treaties with stronger investment protections. likewise, little support is found for explanations derived from the project on the rational design of international institutions, which discounts the identities and preferences of the treaty partners and instead emphasizes the structural conditions they jointly face. In sum, this foundational study of differences across investment treaties suggests that the design of treaties is driven by powerful states, which include elements in the treaties that serve their interests, regardless of the treaty partner or the current strategic setting.
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Denza, Eileen. "II. External Relations." International and Comparative Law Quarterly 54, no. 4 (October 2005): 995–1001. http://dx.doi.org/10.1093/iclq/lei048.
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Each time this writer has prepared a three-yearly update on the external relations of the Union, the Treaty framework has changed and the sense that Europe's leaders are being distracted from vital problems grows. The Constitution for Europe now on offer, the result of a mandate from the European Council at Laeken to effect a simplification of the treaties with a view to making them better understood without changing their meaning, would introduce new legal uncertainties into the framework for the conduct of external relations. Its entry into force, however, now appears unlikely.
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Zimmermann, Andreas. "Human Rights Treaty Bodies and the Jurisdiction of the International Court of Justice." Law and Practice of International Courts and Tribunals 12, no. 1 (2013): 5–29. http://dx.doi.org/10.1163/15718034-12341244.
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Abstract In recent years, the ICJ has had to deal more and more often with alleged violations of major human rights treaties and the respective compromissory clauses contained in such treaties. Yet, the interrelationship between the Court’s treaty-based jurisdiction under such clauses and State complaint mechanisms, as provided for in human rights treaties, has not yet been fully considered and analysed. Moreover, there might also be interlinkages between the ICJ’s contentious jurisdiction under Article 36 (2) of the ICJ Statute and such State complaint procedures.
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Nefedov, B. "The critique of the Westphalian peace narrative." International Trends / Mezhdunarodnye protsessy 20, no. 3 (September 30, 2022): 6–27. http://dx.doi.org/10.17994/it.2022.20.3.70.3.
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The article studies perceptions of the Peace of Westphalia that were formed in the fields of international relations history and the general theory of international law as a result of conflicting doctrines, with some claiming the Westphalian treaties of 1648 are of universal significance for these scientific fields, and others, conversely, denying that these treaties had any sort of influence on the formation of a modern system of international relations and the formation of international law as a legal system. The article concludes that the treaties of the Peace of Westphalia does not actually contain many of the provisions attributed to them. These norms often arise only from their interpretation. However, the critics of the treaties’ significance for the history of international relations and their international legal regulationwho focused their attention only on the verbatim text of these documents while ignoring the historical conditions surrounding their development and adoption, failed to properly assess their impact. The Westphalian Congress was the first congress in world history that was pan-European in character. Its widely representative nature, the lengthy period of time during which it was held, the content of the treaties and the universally binding nature of their provisions, as well as the protocol rules, allow us to claim that the states of this world region started to identify themselves as part of a single pan-European international community. Moreover, the Congress also saw the creation, in a relatively short time, not only of treaties, but also of customary norms of general international law that were of fundamental importance for the formation of a new system of international relations. Despite the fact that most of the provisions of the Peace Treaty of Westphalia of 1648 havean applied nature, it is by no means an insignificant medieval treaty, the only virtue of which lies in it ending the Thirty Years' War. The Peace of Westphalia is an example of the first pan-European international treaty in world historywhich formulated a number of binding norms for all states of this part of the world. To sum up, the Westphalian Peace Treaty was, a historic breakthrough the creation of treaty norms of general international law, and therefore the it should be deemed a historical milestone in the creation of international law as a legal system.
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Czaplinski, Wladyslaw. "The New Polish-German Treaties and the Changing Political Structure of Europe." American Journal of International Law 86, no. 1 (January 1992): 163–73. http://dx.doi.org/10.2307/2203147.
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The bilateral treaties concluded by Poland and Germany on November 14, 1990, and June 17, 1991, are an ideal illustration of the political and social changes in Central Europe. They were intended to constitute a turning point in the relations between the two neighbors, enemies for centuries that are now starting to construct a common future.
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Mushkat, Roda. "Hong Kong and Succession of Treaties." International and Comparative Law Quarterly 46, no. 1 (January 1997): 181–201. http://dx.doi.org/10.1017/s0020589300060176.
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It is not surprising that, at a time when the world's political maps are being constantly redrawn, the subject of “State succession” features prominently in international legal discourse. By the same token, the infrequency of “waves” of transformation, the diversified modalities of change (cession, annexation, decolonisation, dissolution, secession, merger, unification) and the varying contextual circumstances have resulted in a less than coherent theoretical or practical framework for resolving issues of State succession.1 Nor can limited international attempts at “codification”—represented in the 1978 Vienna Convention on Succession of States in Respect of Treaties2 (the “1978 Succession Convention”) and the 1983 Vienna Convention on Succession of States in Respect of Property, Archives and Debts3—be regarded as expressing established customary norms or articulating laws grounded in consistent State practice, judicial precedent or juristic opinion.
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Kohona, Palitha T. B. "Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations." American Journal of International Law 99, no. 2 (April 2005): 433–50. http://dx.doi.org/10.2307/1562508.
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This Note will examine developments in the practice of the United Nations secretary-general on reservations and declarations to treaties, particularly since 1994 when the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties was last updated. This period was marked by some notable developments in the previous practice, especially in connection with human rights treaties.The Vienna Convention on the Law of Treaties of 1969 (Vienna Convention) provides the framework for the functions of the secretary-general in his role as depositary of multilateral treaties. Most aspects of the law relating to reservations and declarations to treaties are also codified in the Vienna Convention.Over five hundred multilateral treaties are deposited with the secretary-general. The complex requirements relating to these treaties and the concerns of the many disparate states that may undertake treaty actions with regard to them have significantly influenced his practice. He is also conscious of the political sensitivities surrounding his decisions and the need to protect his own integrity and impartiality.
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Schmalenbach, K. "International Institutional Veil in Public International Law. International Organisations & the Law of Treaties." European Journal of International Law 20, no. 2 (April 1, 2009): 462–63. http://dx.doi.org/10.1093/ejil/chp020.
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Tir, Jaroslav, and Douglas Stinnett. "The Institutionalization of River Treaties." International Negotiation 14, no. 2 (2009): 229–51. http://dx.doi.org/10.1163/157180609x432815.
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AbstractThis article seeks to expand our understanding of why states use international institutions to manage transboundary rivers. Agreements governing the use and management of international rivers can contain a variety of different institutional features. We address the question of why riparian states choose to include or exclude these features from river treaties. Our explanation focuses on the problem of securing post-agreement compliance. Institutions perform a variety of functions that help states maintain cooperation over time. We analyze this explanation using a data set of river treaties formed between 1950 and 2002. We find that the institutionalization of river treaties is associated with water scarcity, the flow pattern of shared rivers, trade interdependence, and the level of economic development. These findings have important implications for the possibility that rivers will be a source of future conflicts.
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Osiander, Andreas. "Sovereignty, International Relations, and the Westphalian Myth." International Organization 55, no. 2 (2001): 251–87. http://dx.doi.org/10.1162/00208180151140577.
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The 350th anniversary of the Peace of Westphalia in 1998 was largely ignored by the discipline of international relations (IR), despite the fact that it regards that event as the beginning of the international system with which it has traditionally dealt. By contrast, there has recently been much debate about whether the “Westphalian system” is about to end. This debate necessitates, or at least implies, historical comparisons. I contend that IR, unwittingly, in fact judges current trends against the backdrop of a past that is largely imaginary, a product of the nineteenth- and twentieth-century fixation on the concept of sovereignty. I discuss how what I call the ideology of sovereignty has hampered the development of IR theory. I suggest that the historical phenomena I analyze in this article—the Thirty Years' War and the 1648 peace treaties as well as the post–1648 Holy Roman Empire and the European system in which it was embedded—may help us to gain a better understanding of contemporary international politics.
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Litfin, Karen T. "Framing Science: Precautionary Discourse and the Ozone Treaties." Millennium: Journal of International Studies 24, no. 2 (July 1995): 251–77. http://dx.doi.org/10.1177/03058298950240020501.
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Krepon, Michael. "Isolate Helms; push treaties." Bulletin of the Atomic Scientists 53, no. 1 (January 1997): 4. http://dx.doi.org/10.1080/00963402.1997.11456686.
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Pahis, Stratos. "BITs & Bonds: The International Law and Economics of Sovereign Debt." American Journal of International Law 115, no. 2 (January 28, 2021): 242–80. http://dx.doi.org/10.1017/ajil.2021.1.
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AbstractRecent jurisdictional decisions suggest that sovereign debt will be subject to bilateral investment treaties (BITs) for the foreseeable future. This Article argues that applying BITs to sovereign bonds threatens to undermine the core economic function of those treaties by encouraging inefficient state and creditor behavior and raising the overall cost of sovereign debt. It further argues that this concern can be addressed through an interpretative approach that leads to the equal treatment of like creditors.
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Warbrick, Colin, and Dominic McGoldrick. "II. International Law in English Court—Recent Cases." International and Comparative Law Quarterly 52, no. 3 (July 2003): 815–24. http://dx.doi.org/10.1017/s0020589300067130.
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The Orthodox position on the legal effect of treaties in English law is easy to state. Treaties are entered into by the Executive acting under prerogative powers. The exercise of these powers is not, even in the post-GCHQ2 dispensation, a matter within the jurisdiction of the courts, so that the desirability of entering into a treaty cannot be challenged in the courts.3 However, since any prerogative power must be exercised campatibly with legislation, if there is an extant statutory restriction upon making a particular treaty or providing a particular procedure as a condition upon which the prerogative power may be exercised, then compliance with the statutory provisions is a matter for the courts.4
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Western, Shaina D. "Bargaining Power at the Negotiation Table and Beyond." International Negotiation 25, no. 2 (April 30, 2020): 169–200. http://dx.doi.org/10.1163/15718069-25131239.
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Abstract International treaties require ratification to go into effect. But while some treaties have high ratification rates, many do not, leading to a system where issues appear to be addressed on paper but are not in practice. This article seeks to address why treaties receive varying levels of support and finds that factors present during the negotiation phase of the agreement affect the ratification phase. Specifically, bargaining power at and away from the negotiation table influences both the substantive nature of the treaty and the extent to which it will be widely ratifiable. This article explores this issue both in a statistical analysis and in two pairs of qualitative case studies. The evidence indicates that negotiation processes cast a long shadow on the fate of international agreements leading to the current treaty system of prolific international law that is not ratified by most states.
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Wood, John. "International Labour Organisation Conventions—Labour Code or Treaties?" International and Comparative Law Quarterly 40, no. 3 (July 1991): 649–57. http://dx.doi.org/10.1093/iclqaj/40.3.649.
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Azaria, Danae. "‘Codification by Interpretation’: The International Law Commission as an Interpreter of International Law." European Journal of International Law 31, no. 1 (February 2020): 171–200. http://dx.doi.org/10.1093/ejil/chaa016.
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Abstract This article argues that the International Law Commission (ILC) interprets international law. In recent years, in documents intended to remain non-binding, the Commission has made interpretative pronouncements about a treaty in force, the Vienna Convention on the Law of Treaties, and customary international law reflected therein. This development is called the ‘codification by interpretation’ paradigm in this article. This article argues that interpretation falls within the ILC’s function, and it analyses the effects of the Commission’s interpretative pronouncements. It explains that the ILC’s interpretative pronouncements are not per se binding or authentic. However, they may trigger an interpretative dialogue with states. The ILC’s interpretative pronouncements may constitute a focal point for coordination among states, a subsidiary means for determining rules of law and a supplementary means of (treaty) interpretation. The aim of the ILC’s ‘codification-by-interpretation’ paradigm in the four topics considered in this article is to introduce clarity and predictability into secondary rules on the law of treaties, thus ensuring the clarity and predictability of primary treaty rules across all fields of international law. The ILC endeavours to convince states to use international law as a medium by which they regulate their affairs.
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Sykes, Alan O. "Economic “Necessity” in International Law." American Journal of International Law 109, no. 2 (April 2015): 296–323. http://dx.doi.org/10.5305/amerjintelaw.109.2.0296.
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Exigent circumstances can extinguish or suspend a wide range of legal obligations. They may empower governments to seize property or quarantine individuals. They may excuse the nonperformance of private or public contractual obligations. And, of especial interest here, they may permit governments to deviate from their obligations under treaties or customary international law (CIL).
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Langer, Máximo. "The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes." American Journal of International Law 105, no. 1 (January 2011): 1–49. http://dx.doi.org/10.5305/amerjintelaw.105.1.0001.
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Under universal jurisdiction, any state in the world may prosecute and try the core international crimes— crimes against humanity, genocide, torture, and war crimes—without any territorial, personal, or national-interest link to the crime in question whenit was committed.The jurisdictional claim is predicated on the atrocious nature of the crime and legally based on treaties or customary international law. Unlike the regime of international criminal tribunals created by the United Nations Security Council and the enforcement regime of the International Criminal Court (ICC), the regime of universal jurisdiction is completely decentralized.
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Cai, Congyan. "International Law in Chinese Courts During the Rise of China." American Journal of International Law 110, no. 2 (April 2016): 269–88. http://dx.doi.org/10.5305/amerjintelaw.110.2.0269.
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The number of countries in which domestic courts are actively engaged with major public affairs has increased markedly since the early 1990s. In many transitional states, in particular, domestic courts have ruled on great constitutional controversies, which influence the national political process. They have also taken an active role in the application of international law— especially human rights treaties—and at times treat such treaties as a “New Standard of Civilization.” In particular, domestic courts have at times invoked international law in becoming more aggressive toward the executive branch. This trend has been one normative element inspiring some theorists to propose a new field known as comparative international law. This article highlights a different set of elements that become manifest in assessing the rapid overall rise in references to, and application of, international law by courts in China in recent years.
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Methymaki, Eleni. "Thinking Beyond International Adjudication: Inspections as Instruments of Order Production in the International System." Law & Practice of International Courts and Tribunals 21, no. 3 (November 18, 2022): 520–45. http://dx.doi.org/10.1163/15718034-12341489.
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Abstract This article focuses on international inspections, a means of international supervision and monitoring widely used in international law. It argues that to understand how order is produced in and across the international system, it is important to think beyond international adjudication for three reasons. First, the success of international law-making exercises, such as the negotiation of new treaties, is often measured by whether a compromissory clause is included in the agreed text. Such analyses overlook the fact that negotiating parties may choose other mechanisms to ensure compliance with, and implementation of, international norms. Second, not only are inspections often employed in international treaties alongside dispute settlement clauses and other treaty enforcement mechanisms, but – depending on their design – they may also function similarly to dispute settlement processes. Third, and most importantly, that international adjudication is based on state consent is often presented as an important safeguard of sovereignty and sovereign equality. Less often highlighted is the fact that such sovereignty (and sovereign equality) may be unsettled through a multitude of other processes – international inspections being a prime example.
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Sacco, Pier Luigi, Alex Arenas, and Manlio De Domenico. "The Resilience of the Multirelational Structure of Geopolitical Treaties is Critically Linked to Past Colonial World Order and Offshore Fiscal Havens." Complexity 2023 (January 7, 2023): 1–9. http://dx.doi.org/10.1155/2023/5280604.
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The governance of the political and economic world order builds on a complex architecture of international treaties at various geographical scales. In a historical phase of high institutional turbulence, assessing the stability of such architecture with respect to the unilateral defection of single countries and the breakdown of single treaties is important. We carry out this analysis on the whole global architecture and find that the countries with the highest disruption potential are mostly medium-small and micro countries. Political stability is highly dependent on many former colonial overseas territories that are today part of the global network of fiscal havens, as well as on emerging economies, mostly from South-East Asia. Economic stability depends on medium-sized European and African countries. Single global treaties have surprisingly less disruptive potential, with the major exception of the WTO. Our results suggest that the potential fragility of the world order seems to be more directly related to global inequality and fiscal injustice than commonly believed and that the legacy of the colonial world order is still strong in the current international relations scenario. In particular, vested interests related to tax avoidance seem to have a structural role in the political architecture of global governance.
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Meron, Theodor. "International Criminalization of Internal Atrocities." American Journal of International Law 89, no. 3 (July 1995): 554–77. http://dx.doi.org/10.2307/2204173.
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For half a century, the Nuremberg and Tokyo trials and national prosecutions of World War II cases remained the major instances of criminal prosecution of offenders against fundamental norms of international humanitarian law. The heinous activities of the Pol Pot regime in Cambodia and the use of poison gas by Iraq against its Kurdish population are among the many atrocities left unpunished by either international or national courts. Some treaties were adopted that provide for national prosecution of offenses of international concern and, in many cases, for universal jurisdiction; but, with a few exceptions, these treaties were not observed. Notwithstanding the absence of significant prosecutions, an international consensus on the legitimacy of the Nuremberg Principles, the applicability of universal jurisdiction to international crimes, and the need to punish those responsible for egregious violations of international humanitarian law slowly solidified. The International Law Commission, veterans of the Nuremberg and Tokyo proceedings, individuals such as Rafael Lemkin (who advocated the adoption of the Genocide Convention) and a handful of academics (most notably M. Cherif Bassiouni), among others, helped keep alive the heritage of Nuremberg and the promise of future prosecutions of serious violators of international humanitarian law.
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Matheson, Michael J. "The Fifty-Seventh Session of the International Law Commission." American Journal of International Law 100, no. 2 (April 2006): 416–28. http://dx.doi.org/10.1017/s0002930000016730.
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The International Law Commission held its fifty-seventh session in Geneva from May 2 to June 3, and from July 11 to August 5, 2005. The Commission continued its work on shared natural resources, reservations to treaties, responsibility of international organizations, unilateral acts of states, and fragmentation of international law. It began work on the effect of armed conflict on treaties and expulsion of aliens, and decided to begin work next year on the obligation to prosecute or extradite. It took no further action for the time being on diplomatic protection or on international liability for transboundary harm, pending the receipt of comments from governments on the texts adopted on first reading in 2004.
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Viljoen, Frans, and Lirette Louw. "State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights, 1994-2004." American Journal of International Law 101, no. 1 (January 2007): 1–34. http://dx.doi.org/10.1017/s000293000002950x.
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Current discourse on international human rights leaves little room for self-satisfaction about near-universal acceptance of wide-ranging normative frameworks with a global and regional scope. Recent times have witnessed growing academic concern with the “impact” or “effect” of international human rights treaties on the de jure and de facto legal position in state parties. These concerns are embedded in bigger and more enduring questions about the nature of state obligations under international law (including those derived from “nonbinding norms”) and compliance with them. However, general questions about obedience to international law have been replaced by attempts to answer the question whether human rights treaties in fact “make a difference.”
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Gragl, Paul, and Malgosia Fitzmaurice. "THE LEGAL CHARACTER OF ARTICLE 18 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES." International and Comparative Law Quarterly 68, no. 3 (July 2019): 699–717. http://dx.doi.org/10.1017/s0020589319000253.
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AbstractThe main reason for Article 18 being one of the most opaque provisions of the Vienna Convention is that it establishes a relatively vague ‘interim obligation’ for States to refrain from acts which would defeat the object and purpose of a treaty between its signature and ratification. Although the existence of such an interim obligation has been recognized by States and in various international legal regimes, it remains problematic since Article 18 neither defines nor determines its own contours and when and under which conditions it is being breached. It goes without saying that the legal consequences of a possible breach of this provision are left equally unclear. It remains uncertain how the interim obligation of Article 18 fits into the general international law of treaties; what its legal nature and temporal scope is; which role the principle of good faith plays as a possibly underlying principle of this provision; and how we should understand the object and purpose of a treaty and how it can be defeated. Furthermore, its apparent focus seems to be on bilateral rather than multilateral treaties, but this exclusive application of this interim obligation to bilateral treaties would contravene both the expressed and implied intent of the drafters. Therefore, this article also discusses how Article 18 fits within the normative system of international law and law-making treaties, such as human rights treaties.
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Kleinheisterkamp, Jan. "FINANCIAL RESPONSIBILITY IN EUROPEAN INTERNATIONAL INVESTMENT POLICY." International and Comparative Law Quarterly 63, no. 2 (April 2014): 449–76. http://dx.doi.org/10.1017/s0020589314000116.
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AbstractEU Financial responsibility resulting from investor-state arbitration is a politically sensitive topic that is currently shaping the emerging European international investment policy. What level of protection can foreign investors be granted in future EU investment treaties without compromising EU ‘policy space’? How much review of its regulatory powers by arbitral tribunals, rather than by the CJEU, is the EU willing to accept? Taking the Commission's recent draft Regulation on managing financial responsibility as the starting point, this article analyses the implications that future EU investment agreements may have for the existing safeguards balancing private and public interests in EU law. It discusses the different policy choices in the light of fears that investment treaties may affect the EU policy space. A more scientific and sustainable approach is then suggested for ensuring that future EU agreements provide sufficient clarity regarding the outer bounds of financial responsibility and criteria for liability with the aim of maximizing legal certainty for both investors and host states.
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Haugen, Hans Morten. "The Nature of Social Human Rights Treaties and Standard-Setting WTO Treaties: A Question of Hierarchy?" Nordic Journal of International Law 76, no. 4 (2007): 435–64. http://dx.doi.org/10.1163/090273507x249228.
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AbstractSocial human rights are not held to belong to the category of jus cogens norms. At the same time these human rights protect vital matters, such as the right to adequate food, which obviously has a relationship to the right to life. On the other hand, the annexes to the World Trade Organization (WTO) Agreement, which are binding on all WTO member States, has implied a shift from the old General Agreement on Trade and Tariffs (GATT) to the WTO, from pure contractual treaties to more standard-setting treaties. The article seeks to analyse if the obligations erga omnes and the concept of 'multilateral obligations' are applicable to distinguish between human rights treaties on the one hand and WTO agreements on the other. The background of the analysis is also the work of the International Law Commission (ILC) Study Group on fragmentation of international law, finalised in 2006. The article finds that there is still uncertainty regarding the exact meaning of the term 'multilateral obligations'. Hence, other concepts such as 'absolute obligations' might be preferred in order to characterise human rights treaties, and hence implicitly acknowledge that treaties that protect vital matters may prevail over other treaties, based on the interests which are to be protected.
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Montal, Florencia, Carly Potz-Nielsen, and Jane Lawrence Sumner. "What states want: Estimating ideal points from international investment treaty content." Journal of Peace Research 57, no. 6 (October 29, 2020): 679–91. http://dx.doi.org/10.1177/0022343320959130.
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When negotiating investment treaties, states balance two goals: providing strong protections for investors (investor protection), which is thought to attract foreign direct investment, and maintaining the ability to regulate their economies (regulatory autonomy). In this article we argue that treaty content can tell us about the latent preferences that states have over the level of investor protection enshrined in BITs. We use an item response theory (IRT) model and a dataset of 1,144 treaties to estimate latent preferences on this scale for signatory countries. Our measure is of use to scholars interested in studying bilateral investment treaties, international law, and foreign direct investment, and our model is of use to anyone aiming to estimate latent preferences from jointly produced manifestations.
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Clark, Tom, and Jan Niessen. "Equality Rights and Non-Citizens in Europe and America: The Promise, the Practice and Some Remaining Issues." Netherlands Quarterly of Human Rights 14, no. 3 (September 1996): 245–75. http://dx.doi.org/10.1177/092405199601400302.
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The article discusses the fundamental role played by the notion of equality and shows that a general promise of equality is a hallmark of the UN system to which non-citizens’ may lay claim. Recent international juridical practice shows a progressive move towards equality between citizens and non-citizens in civil and social rights. An international human rights doctrine and norms have been established for distinguishing between differentiation which is legitimate and discrimination. The article examines the effect of the international test and doctrine of equality for some of the key rights at issue in practice for several categories of non-citizens. The article reflects on the interpretative power of the texts of regional human rights treaties on State obligations under a ratified human rights treaty. When States enter into treaties involving human beings for whatever purpose, for example the North American Free Trade Agreement (NAFTA) or the Treaty on European Union (EU), they do not do so in a legal vacuum. Human beings attract human rights from treaties at the international and regional level. Many States have entered one or more of these human rights treaties so that any other additional treaty must be consonant with the existing human rights treaty obligations. One of the human rights treaty promises is that of human rights in equality. The article argues that when States jointly grant rights or benefits under a further treaty, the further treaty must ensure that the rights jointly granted must be granted in equality. The article concludes that to ensure the promise of non-discrimination for non-citizens requires further initiatives and suggests efforts to ensure treaties impacting non-citizens are ratified (especially those relating to economic and social rights and migrant workers), a review of existing treaties involving non-citizens, a more careful application of non-discrimination provisions by human rights treaty bodies and further efforts to establish the equality doctrine and norms in international human rights law by seeking to use the doctrine in complaints and reporting mechanisms.
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Murphy, Sean D. "The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission." American Journal of International Law 107, no. 1 (January 2013): 164–77. http://dx.doi.org/10.5305/amerjintelaw.107.1.0164.
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The International Law Commission held its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012, under the chairmanship of Lucius Caflisch. The session marked the first year of a new quinquennium (2012–2016), with the Commission having completed its work during the prior quinquennium (2007–2011) on four major topics: transboundary aquifers, effects of armed conflict on treaties, reservations to treaties, and responsibility of international organizations.