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Begin New Search Topic Treaties and Agreements Political Geography Global Focus Content Type Journal Article Publishing Institution The Goettingen Journal of International Law

1. The Martens Clause and Environmental Protection in Relation to Armed Conflicts

Author:
Dieter Fleck
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The existing treaty law on the protection of the natural environment during armed conflicts is less than adequate. Treaty provisions relating to international armed conflicts are limited to the prohibition of damage of an extreme kind and scale that has not occurred so far and may hardly be expected from the conduct of hostilities unless nuclear weapons would be used. Even in such a scenario, States possessing nuclear weapons have explicitly objected to the applicability of that treaty law. For internal wars, no pertinent treaty provisions exist in the law of armed conflict. Yet multilateral environmental agreements concluded in peacetime stand as an alternative approach to enhance environmental protection during war. As a civilian object, the environment may not be targeted nor attacked in an armed conflict, but this does not exclude collateral damage, nor does this principle as such offer specific standards for proportionality in attacks. In an effort to close these apparent gaps of treaty law, the present contribution looks into other sources of international law that could be used. In this context, the author revisits the role of the famous Martens Clause in the interplay of international humanitarian law, international environmental law, and human rights law. The role of the Clause in closing gaps caused by the indeterminacy of treaty law is reviewed and customary rules, general principles, and best practices are considered to this effect. For the protection of the natural environment during armed conflicts, the Martens Clause may, indeed, be used as a door opener to facilitate the creation and application of uncodified principles and rules. Particular standards for proportionality in attacks can be derived from the Martens Clause. Pertinent soft law instruments need to be developed in international practical cooperation and by academia. Yet it deserves further study to explore whether, and to what extent, the Martens Clause, which was adopted in the law of armed conflict, may also apply in post-conflict peacebuilding as a case of interaction between the jus in bello and the jus post bellum, at least as far as the protection of the natural environment is concerned.
Topic:
International Law, Treaties and Agreements, Humanitarian Intervention, and Conflict
Political Geography:
Global Focus

2. An Analysis of the Treaty on the Prohibition of Nuclear Weapons in Light of its Form as a Framework Agreement

Author:
Monika Subritzky
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Nuclear weapons present a unique problem and risk to global safety and security. The destructive capability of nuclear weapons, which extends beyond intended targets, is what sets these weapons apart from all else; they are sui generis. These weapons are indiscriminate in both their scale of destruction, which cannot be said to involve proportionate force, and in their residual effects of radioactive fallout, which some scholars have equated to the effect of a poisoned weapon.1 The Treaty on the Prohibition of Nuclear Weapons (TPNW) was adopted at the United Nations Headquarters on 7 July 2017, with 122 States voting in favour of the final draft, one voting against, and one abstaining.2 As of July 2019, the Treaty has twenty-three parties and seventy signatories.3 It is currently not in force as it requires ratification by a minimum of fifty States in order to come into effect.4 The core prohibitions of the Treaty are set out in its first Article, in which State parties agree to never develop, acquire, use or threaten to use, transfer, or stockpile nuclear weapons. What the Treaty does not do, however, is directly eliminate any nuclear weapons; a challenging task in itself considering that none of the current possessors of nuclear weapons even partook in the negotiation of the Treaty. State parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) have obligations under Article VI to undertake negotiations on effective measures leading to disarmament.5 Against a backdrop of little discernible progress on the implementation of Article VI over the last fifty years, Ireland, on behalf of the New Agenda Coalition, submitted a Working Paper outlining possible pathways to nuclear disarmament in an effort to fulfil the provisions of Article VI.6 These pathways were debated in 2016 during the Open-Ended Working Group (OEWG), which was set up for the purpose of providing a forum for discussion regarding advancing nuclear disarmament. The argument of this paper is that the TPNW has the potential to function radically as a disarmament mechanism. At first glance, the Treaty appears to fit within the second pathway outlined in the Irish Working Paper, effectively functioning as a simple Ban Treaty. However, a careful analysis reveals that it more neatly fits into the third pathway – a framework arrangement. It is this characteristic which makes the TPNW a novel and profound instrument as well as a potential foundational solution to the problem of nuclear weapons. The core section of the paper is divided into two parts. The first delves into the three main pathways discussed in the Irish Working Paper and analyzes how well each of the proposals can address the problem of achieving nuclear disarmament. As suggested by Brazil in the OEWG debates in 2016, three categories are key in establishing the degree to which each pathway can achieve progress in achieving nuclear disarmament – universality, effectiveness, and political viability.7 All nuclear disarmament treaties must intend to be universal in light of the humanitarian consequences of their usage. However, a disarmament treaty can be successful with universality as one of its objectives, rather than a precondition. Widespread support for a treaty also lends to its effectiveness, as do mechanisms for verification and enforcement.8 The political viability of a treaty is key as, without the willing participation of governments, proposals can easily be discarded. The analysis is centred on these categories. The second core part of the paper analyzes the structure of the TPNW with a focus on Articles 4 and 8. It demonstrates that the TPNW surreptitiously functions as a framework agreement and that this attribute has enormous value, both in practice and in shaping norms. The flexibility and adaptability of framework agreements is what makes them the most suitable mechanisms for nuclear disarmament.
Topic:
Diplomacy, Nuclear Weapons, Treaties and Agreements, Military Strategy, and Denuclearization
Political Geography:
Global Focus

3. Evaluating the Zero Draft on a UN Treaty on Business and Human Rights: What Does it Regulate and how Likely is its Adoption by States/

Author:
Julia Bialek
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Infringements of human rights through the actions of transnational corporations are common in our globalizing world. While the international community has undertaken numerous attempts to hold private corporations responsible for their actions, only soft law instruments govern this area of public international law. Only recently, a first draft was released for a Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises, also known as the Zero Draft. This article argues that the Zero Draft, while based on contemporary international law, represents a positive first step in the treaty-making process, but it still needs specification and clarification in order to close the gap in human rights protection effectively. First outlining the need for a closure of the gap in human rights protection, this article then closely examines the content of the Zero Draft. To that end, an in-depth analysis of the core provisions of the Draft is offered, especially focusing on the rights of victims, the prevention of human rights infringements, and corporate liability. Furthermore, this article analyzes current State practice and the expectations of the international community towards a legally binding instrument on the topic of business and human rights. Significantly, this article also compares the Zero Draft to existing soft law and previous recommendations on how to close the gap in a binding manner. Finally, the article concludes that, by indirectly holding companies accountable without depriving States of their sovereign power over their companies, the Zero Draft has the potential to be implemented as a future Treaty on Business and Human Rights.
Topic:
Globalization, Human Rights, Treaties and Agreements, and transnationalism
Political Geography:
Global Focus

4. The Evolution of Arms Control Instruments and the Potential of the Arms Trade Treaty

Author:
Tom Coppen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Although the Arms Trade Treaty (ATT) has the potential to create an effective international legal framework for controlling the international arms trade, much depends on the subsequent development of its legal framework. This article therefore analyzes how the ATT, as a multilateral arms control treaty, can develop its own legal framework in accordance with international law and what role the organs established by it can play in that process. It will be shown that in its current form the ATT has significant shortcomings that may prevent it from achieving this goal, but there certainly is room for the lawful development of its norms, which will depend on amassing political will and the establishment of practice.
Topic:
Arms Control and Proliferation, Diplomacy, International Law, Treaties and Agreements, and Military Affairs
Political Geography:
Global Focus