AbstractWithdrawal from international adjudication is a contemporary phenomenon with wide implications. The act of treaty withdrawal is not to be seen as merely the unilateral executive exercise of the individual sovereign prerogative of a State. International law places checks upon the exercise of withdrawal, recognising that it is an act that of its nature affects the interests of other States parties, which have a collective interest in constraining withdrawal. National courts have a complementary function in restraining unilateral withdrawal in order to support the domestic constitution. The arguments advanced against international adjudication in the name of popular democracy at the national level can serve as a cloak for the exercise of executive power unrestrained by law. The submission by States to peaceful settlement of disputes through international adjudication is central, not incidental, to the successful operation of the international legal system.
In recent years, American treaty behavior has produced growing concern among both allies and less friendly nations. On such fundamental issues as nuclear proliferation, terrorism, human rights, civil liberties, environmental disasters, and commerce, the United States has generated confusion and anger abroad. Such a climate is not conducive to needed cooperation in the conduct of foreign and security policy. Among U.S. actions that have caused concern are the failure to ratify several treaties; the attachment of reservations, understandings, and declarations before ratification; the failure to support a treaty regime once ratified; and treaty withdrawal. The structural and historical reasons for American treaty behavior are deeply rooted in the United States' system of government and do not merely reflect superpower arrogance.
The arms control regime consists of several documents, and the United States of America and the Russian Federation as the State-Parties ensured the implementation and effectiveness of them mostly. However, the growing conflict between these States due to Russia's numerous violations of international law and obligations under international agreements has also harmed arms control. The withdrawal of both states from strategically important documents, which were tools for maintaining transparency and mutual control, is a result of the decline in trust and the lack of a constructive dialogue between Washington and Moscow. The Open Skies Treaty is one of these documents. The article examines the United States' reasons for the withdrawal from the Treaty and reveals the consequences of such a decision by the administration of President Trump. It is noted that the agreement, the idea of which belonged to the United States, was signed immediately after the end of the Cold War and was to help build trust and openness in the new environment. It is noted that the Treaty ensures international stability through the ability of each party to openly collect information on the armed forces, activities, and operations of another party through coordinated flights of reconnaissance aircraft over the territory of the member states. However, problems are gradually accumulating due to Russia's actions to restrict flight zones in violation of the provisions of the Open Sky Treaty, which has become especially acute since 2014. That made the United States think about the meaning of participating in an agreement where one of the parties violates its provisions. The authors outline the consequences of the U.S. decision to leave the agreement; in particular, the focus is on the reactions of the U.S. European partners and Ukraine. They also examined applications and countermeasures by Russia that has also announced its withdrawal from the agreement. Reflecting on the prospects for international security and arms control, the preconditions for the potential return of the United States and Russia to the Open Sky Treaty are outlined.
International adjudication is currently under assault, encouraging a number of States to withdraw, or to consider withdrawing, from treaties providing for international dispute settlement. This Working Paper argues that the act of treaty withdrawal is not merely as the unilateral executive exercise of the individual sovereign prerogative of a State. International law places checks upon the exercise of withdrawal, recognising that it is an act that of its nature affects the interests of other States parties, which have a collective interest in constraining withdrawal. National courts have a complementary function in restraining unilateral withdrawal in order to support the domestic constitution. The arguments advanced against international adjudication in the name of popular democracy at the national level can serve as a cloak for the exercise of executive power unrestrained by law. The submission by States of their disputes to peaceful settlement through international adjudication is central, not incidental, to the successful operation of the international legal system.
International adjudication is currently under assault, encouraging a number of States to withdraw, or to consider withdrawing, from treaties providing for international dispute settlement. This Working Paper argues that the act of treaty withdrawal is not merely as the unilateral executive exercise of the individual sovereign prerogative of a State. International law places checks upon the exercise of withdrawal, recognising that it is an act that of its nature affects the interests of other States parties, which have a collective interest in constraining withdrawal. National courts have a complementary function in restraining unilateral withdrawal in order to support the domestic constitution. The arguments advanced against international adjudication in the name of popular democracy at the national level can serve as a cloak for the exercise of executive power unrestrained by law. The submission by States of their disputes to peaceful settlement through international adjudication is central, not incidental, to the successful operation of the international legal system.
The article notes that investments in solar energy have already led to a number of arbitration cases related to the subsequent change in investment incentives. The so-called Solar Cases, initiated by investors under the Energy Charter Treaty (ECT) against Kingdom Spain, Italy and the Czech Republic, focused on the question of whether states could adjust incentives (subsidies and feed-in tariffs) to the detriment of investors after these investors relied on these subsidies to make their investments. Following the results of these arbitration proceedings, the European Union in 2019 decided to revise the text of the ECT. Eight rounds of negotiations were held during 2020 and 2021, the last of which took place in November 2021. Many believe that the reform of the existing treaty has taken too long. In February 2021, France sent a letter to the European Commission on the need for a coordinated EU exit from the ECT. Against this background, Italy's withdrawal from the ECT on January 1, 2016, as well as Russia's withdrawal of the signature on the treaty in 2018, are actions that determine the inevitable collapse of the ECT in the very near future. This article is devoted to the study of the causes and legal consequences of these events. Since Russia's withdrawal from the ECT has already been the subject of study by many Russian and foreign scholars, the author focused their attention on the study of Italian arbitration disputes based on the ECT provisions, as well as on the study of foreign doctrine on this issue.
The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties' provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to it. Having identified various concerns about ISDS, UNCITRAL is now taking stock of potential reform options, and will consider this fall which options to pursue and in what order. To contribute to UNCITRAL's work, CCSI, together with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD), submitted this document outlining potential reform options and considerations. In line with our broader work on objectives of international investment law, the costs and benefits of the current system, alternatives to investor-state arbitration, and strategies for advancing those alternatives, in Draft Treaty Language: Withdrawal of Consent to Arbitrate and Termination of International Investment Agreements, we outline two more systemic and near-term options that states can explore to recraft their investment policies with domestic and international sustainable development objectives.
"Nothing can cause a law that is no longer in accord with custom to remain unamended. Nothing can eause a treaty to remain wholly valid once its purpose has altered. Nothing can cause an alliance to continue as it stands when the conditions in which it was created have changed."—General de Gaulle, on Feb. 21, 1966.The able American Ambassador to France, Charles E. Bohlen, has declared before a Senate Committee that the withdrawal of France from the NATO integrated commands was "probably the most serious event in European history since the end of the war." In weighing this assessment, one might well keep in mind de Tocqueville's reminder that "what we call essential institutions are often only the institutions to which we are accustomed." Yet there is little question that the French move was a significant development in postwar Europe. The purpose of this article is to explore some implications of this development for the international system and for the international legal order.
Driven to a large extent by the EU Commission, a modernization process for the Energy Charter Treaty (ECT) has been underway since 2017. While an agreement in principle (AIP) was reached in 2022, that agreement's adoption and with it the modernization process was put on hold after the EU and its member states could not align their positions. Instead, several states – amongst them France, Germany and Poland – moved to withdraw from the treaty, followed by calls from the European Parliament and then also the EU Commission for the EU and all its member states to follow suit. These developments have left the ECT in a limbo state, with the future of the modernization process and the treaty in general now being highly uncertain. Against this background, this article analyzes the legal implications of the ECT modernization efforts and specifically the effects of the AIP, should it still enter into force. It further addresses the consequences that would follow from the realization of the current withdrawal plans, as well as their interactions with the modernization process.
The role of legally binding agreements in achieving arms control objectives has been the subject of discussion in recent years. One specific aspect, the circumstances in which a state may unilaterally withdraw from its legal obligations, has become especially controversial. A legally binding agreement under international law -- a treaty -- is generally seen as a robust tool for the recording of agreements between states. The conclusion, maintenance and termination of such agreements are governed by a branch of international law known as 'the law of treaties'. The performance of obligations owed under a treaty is safeguarded by the principle expressed in the Latin maxim pacta sunt servanda-agreements are to be honored in good faith. A central element in the notion of a legally binding agreement is that its termination is subject to the application of legal rules, rather than the discretionary interests of single parties. Subjecting the termination of a treaty to legal rules and principles serves to maintain stability and predictability in international relations. On 10 January 2003, North Korea revoked a 10-year 'moratorium' on its 1993 unilateral withdrawal from the multilateral 1968 Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty, NPT). In 1993 it had invoked a special clause in the NPT that allows a party, in exercising its national sovereignty, to withdraw from the treaty if it decides that 'extraordinary events' have jeopardized its supreme interests. The North Korean withdrawal from the NPT in 2003 was the first instance of such a clause being invoked in relation to a modern multilateral arms control agreement. However, it was not the first instance of a state using a similar clause to renounce obligations owed under an arms control treaty. In 2002, the United States withdrew from the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems (ABM Treaty), a bilateral agreement between it and the Soviet Union/Russia, by invoking a similar clause on unilateral withdrawal. The actions taken by the North Korean and US governments are unprecedented in the modern history of international arms control and raise several fundamental and important questions in relation to the role usually attributed to legally binding agreements as a robust tool for arms control. Prima facie, a unilateral withdrawal would seem to run counter to the notion that the termination of a legally binding international agreement should not be at the discretionary interest of a single party. On the other hand, because both the USA and North Korea invoked provisions that were part of the pactum in question, their actions are not contrary to the principle of pacta sunt servanda. However, it should also be emphasized that the context is markedly different in each case. The USA withdrew from the ABM Treaty because its plans for the development of a ballistic missile defense system would have violated the treaty. North Korea, however, invoked the withdrawal clause after having violated its obligations under the NPT. What effect, if any, these two events might have on future invocations of the extraordinary events clause remains to be seen. In any event, it cannot be said that the requirement to provide an explanation served as a moderating factor in either case. None of the arguments presented by the states concerned in support of the use of the clause is persuasive. Neither case resulted in any negative consequences for the withdrawing party. This could set a future standard and may in a sense 'lower the threshold' for the invocation of this type of withdrawal clause in order to terminate legally binding relationships. This would, in turn, run counter to efforts to obtain stability and predictability in international relations. Adapted from the source document.
