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Abstract
This article argues that constitutional safeguards could enhance the effective implementation of the Paris Agreement on Climate Change in the United Kingdom, Germany, and France. First, the article discusses the climate protection frameworks of these three countries, which were all found to be insufficient by their national courts. Second, it presents three different constitutional safeguard models and considers their appropriateness for each case study legal system. Whereas the entrenchment in an ordinary Act of Parliament (Model 1) is the only suitable option for the United Kingdom, a constitutional amendment (Model 2) could be useful in Germany and France. While a new ‘green’ constitution (Model 3), however, sounds promising, it would be difficult to achieve politically. The article presumes that constitutional safeguards are not the only possible instrument to create the political pressure needed to overcome the ‘credible commitment problem’ but that they could, nevertheless, have a positive impact that should at least be taken into consideration.
Abstract
The historical record tells us that the PCIJ first formulated the definition of ‘dispute’ in the Mavrommatis case and that, thereafter, it is the ICJ, by consistently endorsing that definition, that has generated the relevant case law. However, this is merely one side of the story, given that there have been two competing approaches concerning the definition of ‘dispute’. While the case-law definition requires the reciprocal views of two states (the reciprocal approach) in order for a ‘dispute’ to exist, the other approach allows the quasi-unilateral generation of a ‘dispute’ by one state alone (the unilateral approach). This juxtaposition originated from the PCIJ jurisprudence and, thereafter, has long persisted in the ICJ jurisprudence. This article sheds light on the origin of the juxtaposition in the PCIJ era, for elucidating the rational of each approach and reconciling the two approaches in the ICJ jurisprudence.
Abstract
International law is full of commentaries about historic rights as a legal category for acquiring sovereign title or rights that are short of it. This article reflects on how this concept has been internalised in the discourse-setting of China and Russia, concerning the South China Sea dispute and Russia’s conflict with Ukraine, respectively. A systematic examination of Chinese and Russian stances towards the application of historic rights demonstrates that the duo’s argumentation behind historic rights is expanded and exaggerated, blocking international acquiescence. The article demonstrates that, against the difficulty of both powers in securing universal recognition of their expanded claims of historic rights, both seek regional legitimation of their claims through bilateral channels or regional organisations, albeit for distinct political aims. Finally, the article depicts the repercussions of Chinese and Russian approaches to the debate about universal and regional bases of international law.
Abstract
Despite the slow onset nature of sea-level rise, states are already taking action to protect their maritime entitlements. A pivotal moment arrived with the adoption of the Pacific Island Forum Declaration on Preserving Maritime Zones in the Face of Climate Change related Sea-Level Rise in August 2021. This groundbreaking declaration embodies existing and uniform State practice in the South Pacific Ocean, asserting the intention to establish, notify, and maintain maritime entitlements notwithstanding climate-induced sea-level rise. This article questions whether the practice of Pacific island Forum members can shape the future international legal framework regarding baselines and maritime entitlements affected by sea-level rise. The Pacific Island Forum declaration highlights the practice of its members in preserving baselines despite sea-level rise, potentially qualifying as subsequent practice under Article 31(3)(b) of the VCLT. Finally, this article argues that the practice of Pacific Island Forum members, particularly their coordinated approach in freezing permanently baselines due to sea-level rise, shows the emergence of special customary law addressing the evolving challenges posed by climate change.
Abstract
In a globalised world, multinational corporations have spread their activities across many countries in search of resources and profit. Often this takes place at the expense of the rights of the local population and the environment, leading to displacement, pollution of the nature, serious illness and loss of income. At the same time, international law currently provides no crystallised legal obligations for corporations to respect international environmental rights. The UN Guiding Principles on Business and Human Rights (UNGPs) are the key instrument addressing corporate impact on human rights at the moment. To what extent should the latter, as well as the regional human rights regime, play a role when the victims of corporate violations of environmental rights turn to national private law in search of redress either at home, where the environmental harm took place, or abroad, where the parent company is domiciled? Within this context, the article questions the role of national tort litigation in holding corporations accountable for international environmental rights’ violations. Through a comparative analysis of two prominent judgments of recent years, the article addresses matters of extraterritorial jurisdiction, the role of state compliance with the UNGPs, including through national legislation, as well as the role of domestic courts in factoring the international human rights framework into the private obligations of corporations. Although the 2019 Vedanta judgment from the UK Supreme Court and the 2021 Shell Nigeria decided by the Dutch Court of Appeal reveal a certain encouraging trend in terms of the rules on the duty of care of multinational corporations, they also expose the shortcomings of seeking redress through tort law as far as international human rights law is concerned.
Abstract
This article examines the role of international law in cases where states cause harm to their own natural environment. Hence, the focus of this article is neither on clearly transboundary environmental harm, nor on evidently global issues, such as climate change. Instead, it reflects on the scope of international legal action in relation to instances where a state is causing destruction primarily or exclusively to its domestic environment. By exploring the role of international law in these domestic matters, this study reflects not only on the boundaries of international environmental law, but also on various foundational concepts underlying the international legal system. Starting with the principle of sovereignty and the freedom it grants to states to freely use – or abuse – their domestic environment, but also the limitations to this discretion. Secondly, as this study is concerned with the multilateral aspects of international environmental law, it dives into the community interest in international law. More specifically, non-bilateral state responsibility and the erga omnes nature of environmental obligations. This article observes that international environmental law has shifted away from strict notions of sovereignty and now holds the potential to impose enforceable obligations on states towards the protection of their own domestic environment. It advances that the underlying driver of this progression is the shared interest that the international community holds in environmental protection.
Abstract
The TRIPS Agreement allows its members to increase the minimum standards of intellectual property provisions within their domestic legislations, provided that such standards do not contravene the provisions of the TRIPS Agreement. Since there is no cap on the upper limit of increasing these standards, the United States (the US) and the European Union (the EU), which have traditionally included higher intellectual property standards in their national laws, have pushed other countries too to include within their domestic laws such higher intellectual property standards. Such standards are called as ‘TRIPS-plus’ terms. For this purpose, the US and the EU have made use of their free trade agreements – a form of preferential trading arrangement allowed by the World Trade Organization (the WTO). An examination of the intellectual property provisions included in the free trade agreements with their trading partners reveal that most of such provisions are either lifted from their domestic intellectual property laws, or were the demands which were raised during the negotiation of the TRIPS Agreement, but were left unfulfilled due to various reasons.
Abstract
An analysis of certain use of force judgments illustrates judicial inconsistency in this area of the law. In the light of international judicial bodies’ inconsistent assessments of the prohibition of threat or use of force, an interpretation of the threshold of engagement of Article 2(4) of the Charter of the United Nations is required. This article argues that not all forms of force fall under Article 2(4). It also seeks to determine the definition of the concept of force within Article 2(4), and proposes a three-legged test to identify those types of forceful acts which breach Article 2(4). The article aspires to provide a starting point in decision-makers’ analysis of Article 2(4), and to contribute to the promotion and achievement of increased judicial consistency in future threat or use of force cases.