Suchergebnisse

In "the constitutional case of the century", the UK Supreme Court concluded that the Government did not possess the prerogative power to withdraw from the European Union. However, whilst it may be clear that legislation was required to empower the Government to notify the European Union of its intention to leave, it is not necessarily clear when legislation would be required to withdraw from international Treaties. There is also considerable controversy as to whether the Supreme Court reached the right conclusion. It is hard to determine how far Miller would apply to other international Treaties. At its broadest, it would apply to the withdrawal from any Treaty which had created rights for individuals, regardless of whether this Treaty had been implemented into domestic law or not. At its narrowest, it only applies to the European Union Treaties, which created a set of arrangements in international law that are so esoteric, they are unique to the European Union. To demonstrated how one judgment can generate such a plethora of interpretations, we need to revisit the original criticisms and unravel the different strands of argument running through the decision.

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 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.

The ways of decision-making within the EU have significantly changed in the last decades: The rule of unanimity has been more and more substituted by majority voting in order to speed up decision-making processes in a Union of 27 heterogeneous member states. A third possibility is now offered by the Lisbon Treaty including a constitutional right of withdrawal. A member state encountering a loss in its benefits caused by a decision made by majority voting may now demand compensating transfers by using the right of withdrawal. It might threaten to leave the EU if the compensation is denied. Hence, does this mean that member states now have regained a negotiation power comparable to the right to veto? Using a game theoretic approach we investigate the amount of compensating transfers to be offered under majority decisions with exit option compared to decisions requiring unanimity. ; peerReviewed

This article tries to analyze Italian government's stance after Albania's de facto withdrawal from the Warsaw Treaty in 1961 and de jure denunciation of this treaty in 1968. The retreat of Soviet troops from Vlora Naval Base had a considerable impact on Italy's foreign relations with Albania in many regards. Concerning internal interests, Italy had a close relationship with Albania and had always demonstrated the willingness to enhance her influence in this respect. On the other hand, for Italy being a NATO member country, Albania's withdrawal from the Warsaw Treaty was an enormous relief. The possibility that the two superpowers clash on the Adriatic Sea was considerably minimized. This led to a genuine interest in Albania. Albanian political immigrants in Italy played a major role in enhancing this attention. Nevertheless, because of the communist regime in Albania, the rapprochement wanted by Italy remained merely a desire which did not exceed bilateral economic relations. Viewed as an opportunity for Albania to open up to the West, this effort constitutes another chance deliberately "missed" by the regime at home. DOI:10.5901/mjss.2017.v8n2p155

The ways of decision making within the EU have significantly changed in the last decades: the rule of unanimity has been more and more substituted by majority voting in order to speed up decision-making processes in a Union of 27 heterogeneous member states. A third possibility is now offered by the Lisbon Treaty including a constitutional right of withdrawal: A member state encountering a loss in its benefits caused by a decision made by majority voting may now demand compensating transfers by using the right of withdrawal: It might threaten to leave the EU if the compensation is denied. Are member states becoming as powerful as they are under the rule of unanimity because they use the right of withdrawal as a threat point? Using a game theoretic approach we show that normally compensating transfers will be lower under majority decisions with exit option compared to decisions requiring unanimity; under certain conditions however transfers could also be as high as in the case of unanimity. In practise, the EU will offer compensating transfers depending on how credible a member state threatens to leave the Union. By using cheap talk a member state may increase the credibility of its outside option and therefore receive higher transfers.

The Lisbon Treaty from 2009 introduced the possibility for individual member states to withdraw from the European Union (EU) on the basis of a unilateral decision. In June 2016 the UK decided to leave the EU invoking article 50 of the treaty. But is withdrawal democratically legitimate? In fact, the all affected principle suggests that it is undemocratic for subunits to leave larger political units when it adversely affects other citizens without including them in the decision. However, it is unclear what the currency of this affectedness is and, hence, why withdrawal would be undemocratic. We argue that it is the effect of withdrawal on the status of citizens as free and equal that is decisive and that explains why unilateral withdrawal of subunits from larger units is democratically illegitimate. Moreover, on the 'all affected status principle' that we develop, even multilaterally agreed withdrawal is undemocratic because the latter diminishes the future ability of citizens to make decisions together regarding issues that affect their status as free and equal. On this basis, we conclude that it is undemocratic for a member state such as the UK to withdraw from the European Union.

The Lisbon Treaty from 2009 introduced the possibility for individual member states to withdraw from the European Union (EU) on the basis of a unilateral decision. In June 2016 the UK decided to leave the EU invoking article 50 of the treaty. But is withdrawal democratically legitimate? In fact, the all affected principle suggests that it is undemocratic for subunits to leave larger political units when it adversely affects other citizens without including them in the decision. However, it is unclear what the currency of this affectedness is and, hence, why withdrawal would be undemocratic. We argue that it is the effect of withdrawal on the status of citizens as free and equal that is decisive and that explains why unilateral withdrawal of subunits from larger units is democratically illegitimate. Moreover, on the 'all affected status principle' that we develop, even multilaterally agreed withdrawal is undemocratic because the latter diminishes the future ability of citizens to make decisions together regarding issues that affect their status as free and equal. On this basis, we conclude that it is undemocratic for a member state such as the UK to withdraw from the European Union. ; The Lisbon Treaty from 2009 introduced the possibility for individual member states to withdraw from the European Union on the basis of a unilateral decision. But would withdrawal be democratically legitimate? In fact, the all-affected principle suggests that it is undemocratic for subunits to leave larger political units because it adversely affects other citizens without including them in the decision. However, it is unclear what the currency of this affectedness is and, hence, why withdrawal would be undemocratic. We argue that it is the effect of withdrawal on the status of citizens as free and equal that is decisive and that explains why unilateral withdrawal of subunits from larger units is democratically undesirable. Moreover, on the 'all-affected status principle' that we develop, even multilaterally agreed withdrawal is undemocratic because the latter diminishes the future ability of citizens to make decisions together regarding issues that affect their status as free and equal. On this basis, we conclude that it would be undemocratic for a member state to withdraw from the European Union.

ABSTRACT This research aims to analyze the behavior of United State who decide to withdraw from Intermediate-range Nuclear Force Treaty (INF Treaty). INF Treaty is a post cold war agreement between the United States and Uni Soviet which limited the use and development of ground missile with the range of 500-5.500 km. The INF Treaty became the treaties that eliminates missile threat in the Euro-Atlantic region. After more than thirty years, United State decided to withdraw from the agreement even though the dcision might be dangerous for Euro-Atlamtic region. This research uses an explanative qualitative method, and literature sources to collect the data. Therefore, Researcher uses a theory, which is offensive realism in order to answer the motive behind United State's withdrawal. These research perceives that the treaty was not accordance anymore with the United States objective in developing missile to achieve hegemony in missile development. Keywords: United States, Russia, INF Treaty, Offensive Realism

President Donald Trump has announced that the United States will leave the multilateral Open Skies Treaty (OST). Russia could soon follow. The Trump administration would thus continue the US withdrawal from cooperative security and destroy another piece of the arms control architecture. Its continued dismantling, a new arms race, and the return of armed conflict and nuclear warfare scenarios threaten Europe's security and strategic stability. The OST permits cooperative observation flights over the territories of the States Parties. This allows for maintaining a minimum of military transparency and confidence-building, even in times of crisis. Such observation flights cannot be replaced by national satellite reconnaissance, especially since it is only available to a few states. Having the option to conduct independent observations is particularly important for allies in regions of tension. Germany and European partners must make a strong commitment to maintaining the OST.

As the United States prepares to pull out the entirety of its remaining 2,500 troops from Afghanistan (Liptak, 2021) – a move fast being followed by NATO allies in the war-tattered nation (North Atlantic Treaty Organisation [NATO], 2021a, 2021b) – the onus for security and stability will fall on the region's neighbours. However, this is a window of opportunity in which India can lead the way. It will not be an easy or simple process. As the Taliban become increasingly assertive in the ongoing peace talks and potentially set to govern the country again someday, it is vital that New Delhi carves a channel for diplomatic dealings. […]

One of Saki Dockrill's most significant publications was her monograph, Britain's Retreat from East of Suez.1 In this, the first archival study of the subject, she set Britain's reassessment of its defence priorities in a broad context, looking not only at withdrawal from Southeast Asia and the Persian Gulf, but also at relations with the North Atlantic Treaty Organisation (NATO) over such questions as nuclear-sharing and the size of the British Army of the Rhine (BAOR). She showed that, in reducing spending, the British initially sought cuts in NATO; yet, by 1968, the Wilson government was set on a European future, eager to abandon the world role and enter the European Economic Community (EEC). Saki also looked at the debate over particular weapons systems, such as aircraft carriers and the US-manufactured F-111 aircraft, both vital to a world role. Some previous writers emphasised that the January 1968 decision to quit military bases East of Suez by the end of 1971, was the vital turning point in the process of retreat.2 Others argued it merely marked an acceleration of earlier decisions, especially those announced in July 1967.3 But, Saki looked further back, seeing harbingers of retreat under the Conservative governments of 1959–63.4 Throughout the discussions, a vital question was the need to maintain friendly relations with London's main ally, the United States, which, concerned about its own defence burden, could hardly welcome Britain's retreat.

Abstract In 2015, Iran with the P5 + 1 countries (China, France, Germany, Russia, Britain and the United States, as well as the European Union High Representative for Foreign Affairs and Security Policy) agreed on a JCPOA (Joint Comprehensive Plan of Action) which deals with Iran's nuclear program. The Joint Comprehensive Plan of Action 2015 (JCPOA) is a controversial agreement. First, the JCPOA's status in international law is debated and is not considered as an international treaty. In the midst of the uncertainty over the status of the JCPOA, on May 8 2018, the United States unilaterally declared that it was withdrawing from the JCPOA. Even though the JCPOA has been endorsed by UN Security Council Resolution 2231 (2015). Thus, other JCPOA participating countries view the withdrawal of the United States as an act that is against international law. This article aims to determine whether the JCPOA is an international treaty and whether the withdrawal of the United States from the JCPOA is justified under international law. Keywords: JCPOA, UN Security Council Resolution, Withdrawal Abstrak Pada tahun 2015, Iran dengan negara-negara P5+1 (China, Prancis, Jerman, Rusia, Inggris dan Amerika Serikat, serta Perwakilan Tinggi Uni Eropa untuk Urusan Luar Negeri dan Kebijakan Keamanan) menyepakati JCPOA (Joint Comprehensive Plan of Action) mengenai pembatasan program nuklir Iran. Joint Comprehensive Plan of Action 2015 (JCPOA) merupakan perjanjian yang mengundang kontroversi. Pertama, status JCPOA mendapat perdebatan karena dianggap bukan perjanjian internasional. Kemudian pada 8 Mei 2018, Amerika Serikat secara sepihak menyatakan menarik diri dari JCPOA. Padahal JCPOA telah dimasukkan ke dalam Resolusi Dewan Keamanan PBB 2231 (2015). Sehingga peserta JCPOA lainnya menganggap tindakan Amerika Serikat sebagai perbuatan yang bertentangan dengan hukum internasional. Artikel ini bertujuan untuk mengetahui apakah JCPOA merupakan suatu perjanjian internasional dan apakah penarikan diri Amerika Serikat dari JCPOA dapat dibenarkan berdasarkan hukum internasional. Kata kunci: JCPOA, Penarikan Diri, Resolusi Dewan Keamanan PBB

Energy security is among the key issues in political agendas worldwide. Developed and developing economies, in fact, are increasingly concerned to secure constant flows of energy for fuelling their economic and social development. Despite there is no universally accepted definition of energy security, there is widespread consensus on that it relies, inter alia, on appropriate international instruments for promoting and, more important, protecting cross-border energy investments. Energy investments, effectively, are capital-intensive, long-lasting and highly-risky. This is particularly so as far as foreign energy investments are concerned. Investors investing in foreign Countries, in fact, are particularly exposed to non-commercial risks such as nationalizations, expropriations or discriminatory treatments. In order to carry out their investments and, more important, to protect them, therefore, said investors require proper guarantees on that their activities will not be undermined by unjustified or unreasonable measures which may be put into place by the host States. Of paramount importance, to this respect, is the prevision of impartial mechanisms for the settlement of disputes that may arise between foreign investors and host States concerning the activities carried out by the former in the territory of the latter. Indeed, a response to this need is represented by international arbitration, by which possible conflicts are settled by arbitral tribunals external to the host States' judicial systems. In the course of time, international law has provided for numerous instruments by which promoting and protecting foreign energy investments. The Energy Charter Treaty (ECT or "Treaty") is the most relevant instrument to this regard, considering its geographical scope and the matters treated therein. As such, it represents the main attempt to provide for global rules on energy security. The ECT, in fact, encourages the energy cooperation between its around fifty Contracting Parties in a wide range of sectors, such as trade, transit, environmental protection and investment promotion and protection. As regards investment promotion and protection, the ECT provides for a regime which is unique at the international level. It safeguards energy investments by providing, in particular, for fair and equitable treatment, most constant protection and security, no discrimination and most favoured nation treatment standards. A major feature of the ECT investment regime is the prevision of an investor-State dispute settlement (ISDS) mechanism, laid down in Art. 26, by which investors can bring claims before international arbitral tribunals for alleged breaches of ECT investment commitments which undermine the investments made by them in host Countries. Since the first dispute was filed on April 2001, namely AES Summit Generation Limited v. Republic of Hungary (ICSID Case No. ARB/01/4), nearly a hundred and seventeen arbitral proceedings have been incepted so far, eighty of which – amounting to about the 70% of all cases – have been commenced during the last six years. A state of things suggesting how the Treaty's ISDS regime, after a slow start, has become an important tool by which energy investors can protect their investments. Notwithstanding such a remarkable achievement, however, there are many shortcomings that prevent the ECT from becoming the reference legal framework for international energy security. To this respect, it is worth mentioning the non-participation of major economies such as the USA and China and the decision of Russia to not ratify the Treaty after having applied it provisionally until 2009. In addition, it is worth highlighting also the decision of Italy to withdraw – first and unique case – starting from 1 January 2016. The withdrawal took effect during a turning point of the ECT: by that time, the ISDS mechanism had just started to be fully-tested by investors, especially within the EU context; in addition, the Treaty was experiencing a process of relaunching and updating which culminated with the adoption of the International Energy Charter, a political declaration aimed at bringing the ECT in line with current challenges in energy security. While Italy's withdrawal undisputedly undermined the authority of the Treaty, it had the merit of reviving the doctrinal debate on unsettled and not entirely explored issues concerning its application, especially within the EU context. To this respect, the issues posed by the mixed accession of the EU and its Member States to the ECT stand out. For long, the doctrine has pointed out many interpretative concerns about to what extent the Treaty, in particular the investment regime and, more specifically, its ISDS mechanism, applies to relations between EU Member States and between them and the EU. Following the Italian withdrawal, such issues have gained new momentum and are likely to be explored more in depth in the foreseeable future. This thesis examines three broad subjects: the attempt of the ECT to become the reference set of rules on international energy security; the many issues posed by the mixed accession of the EU and its Member States to it; the implications of the Italian withdrawal in terms of investment promotion and protection. Accordingly, this work consists of three chapters. Chapter I provides for an overview of the ECT as the reference set of rules on international energy security. To this respect, it describes the main steps of the Energy Charter process, i.e. the process that, starting with the European Energy Charter of 1991 and arriving to the International Energy Charter of 2015, led to the adoption of the ECT on 1994 and its entering into force on 1998. Moreover, the chapter describes the main fields of energy cooperation dealt with by the ECT, markedly trade, transit and, more important, investment promotion and protection. The purpose of the chapter is to point out the importance of the Treaty for the promotion and protection of energy investments and the complex issues that prevent its vocation to become the reference international framework for global energy security. Chapter II focuses on the complex procedural issues that the mixed accession of the EU and its Member States poses with respect to the ECT ISDS mechanism. After having examined the status of the EU as a REIO party to the ECT, the qualification of the latter as a "mixed agreement" under EU law and the division of competences within the EU on the matters dealt with by it, the chapter focuses on the following issues: questions of international responsibility of the EU and its Member States for the performance and for breaches of ECT investment provisions; the applicability of the ECT investment regime and, more specifically, its ISDS mechanism, to EU internal relations; the relevance and, more specifically, the applicability of EU law in investor-State disputes filed under Art. 26; the relationship between EU law and the ECT. Chapter III deals, in the first place, with Italy's withdrawal from the ECT. More precisely, the chapter investigates the reasons of the withdrawal and its consequences in terms of investment promotion and protection and on the future of the Energy Charter process. In the second place, the chapter examines the disputes filed against the Italian State under Art. 26. To this regard, after having taken into account the wider context of the ECT ISDS regime and the reasons of the sudden raise of disputes against Italy, it focuses on two cases, namely Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic (ICSID Case No. ARB/14/3) and Eskosol S.p.A. in liquidazione v. Italian Republic (ICSID Case No. ARB/15/50). Both cases are still pending. As to earlier, which is the first case filed against Italy under Art. 26 ECT, an award has been rendered by the tribunal established to settle the dispute. Currently, a proceeding for annulment of the award is underway. Regarding the latter, a decision on an application under Rule 41(5) of the ICSID Rules of Procedures for Arbitration Proceedings has been rendered by the tribunal constituted to settle the controversy. Finally, the work is closed by some conclusive remarks with respect to the matters treated therein. As it will be seen, the issues discussed in this thesis have found – and indeed are increasingly founding – much attention in academic and specialised literature, since they touch very sensitive questions of international, EU and national law. Said issues, however, are far from being comprehensively investigated by the doctrine. As things stand, in the course of the analysis, the state of the art of the doctrinal debate will be taken into account first. Then, the issues at hand will be examined in light of relevant ECT case law. To this respect, some of the awards and decisions rendered by ECT arbitral tribunals – notably those established to settle disputes involving EU Member States and investors therefrom – will be examined with particular attention. By following this methodology, it will be possible to appreciate how said issues emerge or are likely to emerge in investment disputes and are or are likely to be dealt with by ECT arbitral tribunals. In other words, it will be possible to appreciate how said issues affect, in practice, the ECT and process. The aim of the present investigation is to contribute to the debate on the ECT and process, a debate which has just started, and which is likely to get academics and practitioners busy in the future. To this respect, it must be highlighted that ECT practice, now more than ever, is in a state of constant evolution. As a result, additional food for thought is likely to emerge in the future. Indeed, this work is the result of a research started in February 2015 at the Centre for Climate Change, Energy and Environmental Law of the University of Eastern Finland and completed in Rome on August 2018. In the intervening period, subsequent decisions and awards rendered by ECT arbitral tribunals as well as by the Court of Justice of the EU – namely the Achmea Judgement rendered on March 2018 – shed some light on the issues discussed in this work while at the same time raised new questions and interpretative concerns, with the result that a constant work of adaption has been necessary in order to take into account the latest developments on the matter. Accordingly, this work can be seen as a starting point for addressing the many interpretative issues which affect the ECT and which will assume further complexity as far as new awards and decisions are rendered by ECT arbitral tribunals.