It has been 50 years since the adoption of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which established the obligation upon all States Parties to work towards nuclear disarmament under Article VI. Yet, despite extensive reductions in nuclear weapons stockpiles since the Cold War peaks, nuclear arms control and disarmament efforts are currently in disarray. After the Intermediate-Range Nuclear Forces Treaty was terminated in 2019, the New Strategic Arms Reduction Treaty remains as the only bilateral limitation on United States (US) and Russian nuclear forces in operation and is due to expire in February 2021. The US has justified its limited nuclear disarmament progress on the premise that the current international security environment is not conducive to further nuclear disarmament. Instead, the US has recently promoted a new initiative called Creating an Environment for Nuclear Disarmament (CEND). The initiative aims to provide a platform for all States to engage in constructive dialogue to identify ways to improve the international security environment, which make nuclear deterrence necessary while addressing the hurdles that currently impede progress towards nuclear disarmament. Significantly, the US regards CEND as an ‘effective measure’ and an illustration of its commitment towards disarmament under Article VI. This article seeks to address the US claim that CEND represents a good faith, effective measure towards nuclear disarmament pursuant to Article VI. This will revisit existing doctrinal interpretative debates concerning the obligation under Article VI, particularly the requirements that negotiations and measures be adopted in good faith, and what constitutes an effective measure towards nuclear disarmament. The discussion will then determine whether the CEND initiative itself can be considered a good faith, effective measure towards nuclear disarmament, by considering its purpose, origins and implementation, and actions of the US.
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Anne Peters, Heike Krieger and Leonhard Kreuzer
As a standard bridging law and other spheres of normativity, due diligence is pervasive across numerous areas of international law. This paper defines the features and functions of due diligence, illustrating how the concept's development reflects structural changes in the international legal order. Concerning their content, due diligence obligations can be separated into two overlapping types: procedural obligations and obligations relating to States' institutional capacity. Thus, due diligence serves to manage risks, compensate for States' freedoms being circumscribed through legalisation, expand State accountability and possibly stabilise the international order through ‘proceduralisation’. However, it is argued that due diligence cannot be characterised as a general principle of international law due to its diverse content in different fields of international law and its dependence on accompanying primary rules. Finally, it is contended that due diligence introduces certain risks, particularly by diluting States' substantive obligations and contributing to the rise of ‘informal’ international law.
Catherine Drummond and Patrick Simon Perillo
The ambiguity surrounding what constitutes a State's fair share of the global burden of mitigating climate change has undermined the ability of domestic climate change litigation to bring about emissions reductions which are collectively capable of meeting the goal of the Paris Agreement. When confronted with challenges to the adequacy of States' mitigation efforts, domestic courts have also drawn on States' international human rights law obligations. This paper argues that when applying these obligations, the uncertainty surrounding the fair share question must be resolved so as to ensure individual mitigation obligations which are collectively consistent with the Paris Agreement. The analysis focuses on the obligations under the European Convention on Human Rights and outlines how general principles of law applicable in situations involving causal uncertainty could be invoked to address the fair share question.
Godwin Tan and Andrea Chong
This article considers the potential of addressing global environmental risks through the investor–State dispute settlement regime, specifically arbitration under the International Centre for Settlement of Investment Disputes. It examines the viability of States raising environmental counterclaims against investors for breaches of environmental norms through an analysis of the jurisdictional and substantive issues in Burlington v Ecuador and Perenco v Ecuador. The article then assesses broader challenges in using such counterclaims to address environmental risks. However, it also tracks recent developments, such as the rise of new generation treaties that directly impose environmental obligations on investors and tribunal pronouncements that reflect environmental concerns, which demonstrate that international investment law is evolving in a way that will encourage and strengthen environmental counterclaims in the future. The article notes that these developments come with their own set of limitations, some of which are underexamined in practice and in existing literature. While the viability of environmental counterclaims will turn on a careful analysis of the circumstances of each case, the article concludes that such counterclaims will likely play a greater role in supporting global environmental protection in the near future.
Andrew T Bulovsky
Since the early 2000s, anti-corruption enforcement has become increasingly entangled with international investment. This entanglement has created a paradox: the simultaneous over- and under-enforcement of anti-corruption law. Over-enforcement occurs when authorities from multiple jurisdictions subject companies to duplicative enforcement actions and disproportionate penalties for the same underlying conduct. Under-enforcement occurs when local courts and arbitral tribunals insulate the demand side of corruption from liability by failing to exercise jurisdiction over corruption-tainted disputes. Both over- and under-enforcement result in part from unilateralism, whereby States pursue their own interests at the expense of international legal objectives. The over- and under-enforcement of international anti-corruption law undermines anti-corruption law itself, makes investment riskier in developing States and inhibits developmental objectives. To correct for over-enforcement, this article proposes formal commitments from States that the State with the strongest jurisdictional ties to a corruption scandal retains investigative priority. To correct for under-enforcement, this article suggests that local courts and arbitral tribunals invoke equitable estoppel to accept jurisdiction over corruption-tainted disputes and use a contributory-fault approach to hold both the supply side and the demand side of corruption accountable. These solutions would likely prove efficacious in agreements between States and contracts between States and potential investors. Ultimately, this article frames anti-corruption enforcement trends in the context of unilateralism and discusses practicable solutions for a more proportional anti-corruption law regime.
This article examines the potential contribution of international water law (IWL) to alleviating the negative cross-border impacts of ‘dam-induced migration’, the displacement of individuals or communities resulting from dam construction. While much has been written on efforts to deal with this global problem in other areas of international law, the application of IWL in this context has yet to be meaningfully explored. But since dams are frequently constructed on transboundary watercourses, the principles of IWL (no significant harm, equitable and reasonable utilisation, and the duty to cooperate) may prove relevant and useful to mitigating the harmful cross-border impacts of dam-induced migration. The no significant harm principle requires States to comply with a due diligence standard of conduct designed to avoid, minimise, or compensate for significant harm that might result from the use of shared watercourses, including harm to human life or health. The equitable and reasonable utilisation principle obligates each basin State to use an international watercourse in a manner that is equitable and reasonable vis-à-vis the other States sharing it. The duty to cooperate requires States to collaborate in the management and use of shared watercourses and sets out concrete measures to enable collaboration, such as information exchange, consultations, and the establishment of joint institutions. Taken together, these IWL principles can effectively guide the planning, construction, and operation of dams on shared watercourses. Applying them to the specific issue of dam-induced migration, moreover, could promote inter-State cooperation and accountability, facilitate the resolution of disputes, and alleviate negative cross-border impacts. In this way, IWL can supplement other areas of international law in providing a comprehensive solution to the growing problem of dam-induced migration.
The recent prevalence of high-profile unilateral treaty withdrawals raises broader questions over trust in treaty-making. Given the foundational importance of trust in treaties to international law, these withdrawals present risks to the international legal order generally. The issue for international law is how it can regulate treaty withdrawal in a way that preserves trust in the international legal system. The problem of trust is twofold. If international law adopts too permissive a stance towards unilateral withdrawal, then this will undermine trust in the binding force of treaties: pacta sunt servanda. If it is too restrictive, it will undermine the authority of international law, since it will result in situations in which recalcitrant States (ie States which have decided no longer to comply with their obligations) disobey, and are seen to disobey, their obligations. The paper seeks to explore this tension that underlies the regulation of treaty withdrawal. First, it analyses historical approaches to the problem, and, second, how the Vienna Convention on the Law of Treaties has sought to resolve it. It then examines how the principle is and can be used to achieve a balance between integrity and authority that can assist international law in regulating withdrawal and recalcitrance in a manner that preserves trust in treaty-making.
On 16 September 2019, the United Nations General Assembly Resolution 73/343 on tackling illicit trafficking in wildlife reiterated the concept whereby wildlife trafficking constitutes a serious threat not only to the world's biodiversity and ecosystems but also to socio-economic and political stability and to the rule of law. Because of the transnational character of the illicit trade in protected species and because this activity is often carried out by organised criminal groups, any strategy of prevention and repression of wildlife trafficking should entail an effective cooperation between States within an international legal framework. Against this background, this article reflects on the ways in which international law has dealt with wildlife trafficking so far, and on the potential of different international law sources to provide States with effective tools to manage the risks posed by this transnational organised crime. To answer these questions, this article focuses on two main fields of enquiry. First, it considers the characterisation of wildlife trafficking as a threat to the peace within the framework of Chapter VII of the Charter of the United Nations by the United Nations Security Council in Resolutions 2134 (2014) and 2136 (2014), reflecting on the possibility to expand such a qualification outwith the context of specific internal conflicts and the activities of armed groups. Second, the article assesses the effectiveness of such an approach and its eventual added value in the light of the international legal framework already applicable to wildlife trafficking. To do so, it enquires on whether the United Nations Convention against Transnational Organized Crime, in synergy with the Convention on International Trade in Endangered Species of Wild Fauna and Flora, can provide States Parties with an appropriate and sufficient framework to tackle the global threats posed by wildlife trafficking.