Pub Date : 2021-06-29DOI: 10.1163/18719732-12341476
Joanna Bukowska, Piotr Świat, A. Sosnowska
For many years the European Union has aspired to be the leader of global climate protection policy. By setting increasingly ambitious challenges in its efforts against global warming, the EU has tried to encourage other countries to compete in this field at international level. In this article, the authors present the roles of the Council of the European Union and the European Commission in the process of concluding international agreements on climate protection. The division of competences between the two institutions is important in the situation when the agreements are concluded within Union’s non-exclusive competence such as the one in the field of environmental protection. In case of such agreements both the Union and its Member States are contracting parties. However, not only the division of competences is at the centre of the EU external action, but also the development of appropriate solutions that will ensure the effective achievement of climate policy objectives.
{"title":"The Participation of the Council of the European Union and the European Commission in the Process of Concluding International Agreements on Climate Protection","authors":"Joanna Bukowska, Piotr Świat, A. Sosnowska","doi":"10.1163/18719732-12341476","DOIUrl":"https://doi.org/10.1163/18719732-12341476","url":null,"abstract":"\u0000For many years the European Union has aspired to be the leader of global climate protection policy. By setting increasingly ambitious challenges in its efforts against global warming, the EU has tried to encourage other countries to compete in this field at international level. In this article, the authors present the roles of the Council of the European Union and the European Commission in the process of concluding international agreements on climate protection. The division of competences between the two institutions is important in the situation when the agreements are concluded within Union’s non-exclusive competence such as the one in the field of environmental protection. In case of such agreements both the Union and its Member States are contracting parties. However, not only the division of competences is at the centre of the EU external action, but also the development of appropriate solutions that will ensure the effective achievement of climate policy objectives.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"31 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90392528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-29DOI: 10.1163/18719732-12341475
Bartłomiej Krzan
The present study analyses climate change from the perspective of the law of armed conflict. Climate may be both a victim and a means of warfare. Arguably, the existing normative framework is broad enough to allow for accommodating climate change. It cannot be denied that the environment is easily harmed, or at least jeopardized in times of armed conflicts. Despite the obvious lack of explicit references in the instruments of international humanitarian law, it may be argued that it is possible to fit climate change in. The accompanying analysis addresses the respective potential and the ensuing hurdles.
{"title":"Protecting the Environment from the Perspective of the Law of Armed Conflict","authors":"Bartłomiej Krzan","doi":"10.1163/18719732-12341475","DOIUrl":"https://doi.org/10.1163/18719732-12341475","url":null,"abstract":"\u0000The present study analyses climate change from the perspective of the law of armed conflict. Climate may be both a victim and a means of warfare. Arguably, the existing normative framework is broad enough to allow for accommodating climate change. It cannot be denied that the environment is easily harmed, or at least jeopardized in times of armed conflicts. Despite the obvious lack of explicit references in the instruments of international humanitarian law, it may be argued that it is possible to fit climate change in. The accompanying analysis addresses the respective potential and the ensuing hurdles.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"39 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81451815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-29DOI: 10.1163/18719732-12341478
M. Adamczak-Retecka, Olga Śniadach
In recent years climate change and its impacts have become a separate field of inquiry. Climate-related risks to food security, water supply, biodiversity and human health are expected to increase with further global warming. The purpose of this study is to show how the definition of food security in particular has changed in times of climate change. It is a multidimensional phenomenon that has no legal definition so far. Associated mainly with physical access to food, food security was identified as a global problem by Food and Agriculture Organization (FAO) in 1975 at the Word Food Conference. At the European Union level, food security is strictly connected with the Common Agriculture Policy. One of the new aims of that policy is to make agriculture more sustainable and responsive to current and future challenges, including climate variability. There is the dual challenge of both adapting production systems to new conditions and reducing greenhouse gases produced by agriculture.
{"title":"Towards a Redefinition of the Food Security Concept in the Light of Climate Change","authors":"M. Adamczak-Retecka, Olga Śniadach","doi":"10.1163/18719732-12341478","DOIUrl":"https://doi.org/10.1163/18719732-12341478","url":null,"abstract":"In recent years climate change and its impacts have become a separate field of inquiry. Climate-related risks to food security, water supply, biodiversity and human health are expected to increase with further global warming. The purpose of this study is to show how the definition of food security in particular has changed in times of climate change. It is a multidimensional phenomenon that has no legal definition so far. Associated mainly with physical access to food, food security was identified as a global problem by Food and Agriculture Organization (FAO) in 1975 at the Word Food Conference. At the European Union level, food security is strictly connected with the Common Agriculture Policy. One of the new aims of that policy is to make agriculture more sustainable and responsive to current and future challenges, including climate variability. There is the dual challenge of both adapting production systems to new conditions and reducing greenhouse gases produced by agriculture.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80278652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-29DOI: 10.1163/18719732-12341467
Agata Bator, Agnieszka Borek
On the ground that climate change poses a great threat to societies and economies, it became evident for policy makers that attention should be given to the problem of adaptation, i.e. adaptation measures should be undertaken to minimize the adverse impacts of climate change. As the debate on the adverse impacts of climate change advanced at international level, states are taking actions at national, regional and local levels. Along with the increase awareness regarding importance of adaptation, regulations designed to prepare states to strengthen their resilience to climate change, has been developed in climate change treaties. Paris Agreement seems to be the first global agreement which addresses adaptation as one of its key goals and links it with mitigation efforts. The purpose of this article is to discuss the most important regulations and programmes within the regime established by the Framework Convention and the Paris Agreement concerning adaptation to climate change.
{"title":"Adaptation to Climate Change under Climate Change Treaties","authors":"Agata Bator, Agnieszka Borek","doi":"10.1163/18719732-12341467","DOIUrl":"https://doi.org/10.1163/18719732-12341467","url":null,"abstract":"\u0000On the ground that climate change poses a great threat to societies and economies, it became evident for policy makers that attention should be given to the problem of adaptation, i.e. adaptation measures should be undertaken to minimize the adverse impacts of climate change. As the debate on the adverse impacts of climate change advanced at international level, states are taking actions at national, regional and local levels. Along with the increase awareness regarding importance of adaptation, regulations designed to prepare states to strengthen their resilience to climate change, has been developed in climate change treaties. Paris Agreement seems to be the first global agreement which addresses adaptation as one of its key goals and links it with mitigation efforts. The purpose of this article is to discuss the most important regulations and programmes within the regime established by the Framework Convention and the Paris Agreement concerning adaptation to climate change.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"55 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85002850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-29DOI: 10.1163/18719732-12341465
Łukasz Kułaga
The increase in sea levels, as a result of climate change in territorial aspect will have a potential impact on two major issues – maritime zones and land territory. The latter goes into the heart of the theory of the state in international law as it requires us to confront the problem of complete and permanent disappearance of a State territory. When studying these processes, one should take into account the fundamental lack of appropriate precedents and analogies in international law, especially in the context of the extinction of the state, which could be used for guidance in this respect. The article analyses sea level rise impact on baselines and agreed maritime boundaries (in particular taking into account fundamental change of circumstances rule). Furthermore, the issue of submergence of the entire territory of a State is discussed taking into account the presumption of statehood, past examples of extinction of states and the importance of recognition in this respect.
{"title":"The Impact of Climate Change on States","authors":"Łukasz Kułaga","doi":"10.1163/18719732-12341465","DOIUrl":"https://doi.org/10.1163/18719732-12341465","url":null,"abstract":"\u0000The increase in sea levels, as a result of climate change in territorial aspect will have a potential impact on two major issues – maritime zones and land territory. The latter goes into the heart of the theory of the state in international law as it requires us to confront the problem of complete and permanent disappearance of a State territory. When studying these processes, one should take into account the fundamental lack of appropriate precedents and analogies in international law, especially in the context of the extinction of the state, which could be used for guidance in this respect. The article analyses sea level rise impact on baselines and agreed maritime boundaries (in particular taking into account fundamental change of circumstances rule). Furthermore, the issue of submergence of the entire territory of a State is discussed taking into account the presumption of statehood, past examples of extinction of states and the importance of recognition in this respect.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"42 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90902197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-24DOI: 10.1163/18719732-12341463
M. D. Andrade
The method of identification of general principles and their function as a source of law have long been object of doctrinal debate. This topic is now under the programme of work of the International Law Commission. Relatedly, international courts and tribunals have relied on general principles of procedural law derived from national legal systems in their practice and reasoning, but the methodology employed by adjudicators in importing these sources from domestic law remains obscure. This research examines the use of general principles of procedural law in WTO dispute settlement, in particular by its Appellate Body. The aim is two-fold: first, to study the methodology employed in the identification of general principles of procedural law in the case law of the WTO Appellate Body; second, to examine the functions performed by general principles in the practice of this international jurisdiction.
{"title":"General Principles of Procedural Law in the Practice of the WTO Appellate Body","authors":"M. D. Andrade","doi":"10.1163/18719732-12341463","DOIUrl":"https://doi.org/10.1163/18719732-12341463","url":null,"abstract":"\u0000The method of identification of general principles and their function as a source of law have long been object of doctrinal debate. This topic is now under the programme of work of the International Law Commission. Relatedly, international courts and tribunals have relied on general principles of procedural law derived from national legal systems in their practice and reasoning, but the methodology employed by adjudicators in importing these sources from domestic law remains obscure. This research examines the use of general principles of procedural law in WTO dispute settlement, in particular by its Appellate Body. The aim is two-fold: first, to study the methodology employed in the identification of general principles of procedural law in the case law of the WTO Appellate Body; second, to examine the functions performed by general principles in the practice of this international jurisdiction.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"21 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87422197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-24DOI: 10.1163/18719732-12341462
R. Adeola
Contemporary forms of internal displacement in Africa significantly reflect the emerging footprints of non-state actors on the regional landscape of internal displacement. In recognition of the impact of these actors in the internal displacement context, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) specifically obligate states to regulate them in the prevention of arbitrary displacement. This is the central thrust of this article. This article examines the Kampala Convention from the perspective of non-state actors, considering the obligation of the state and the extent to which these actors may be held accountable, in the furtherance of protection and assistance of internally displaced persons (IDP s).
{"title":"Bridging the Accountability Gap in the Protection of Internally Displaced Persons: Non-State Actors Under the Kampala Convention","authors":"R. Adeola","doi":"10.1163/18719732-12341462","DOIUrl":"https://doi.org/10.1163/18719732-12341462","url":null,"abstract":"\u0000Contemporary forms of internal displacement in Africa significantly reflect the emerging footprints of non-state actors on the regional landscape of internal displacement. In recognition of the impact of these actors in the internal displacement context, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) specifically obligate states to regulate them in the prevention of arbitrary displacement. This is the central thrust of this article. This article examines the Kampala Convention from the perspective of non-state actors, considering the obligation of the state and the extent to which these actors may be held accountable, in the furtherance of protection and assistance of internally displaced persons (IDP s).","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"25 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81673104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-31DOI: 10.1163/18719732-12341457
Gian Maria Farnelli
The article addresses how the obligation not to frustrate legitimate expectations has been interpreted and applied in recent investment disputes arising out of amendments in domestic regimes in the renewable energies sector. The analysis will address cases against Czechia, Italy and Spain, the Countries currently facing the majority of disputes for alleged breaches of the Energy Charter Treaty. Jurisdictional issues related to the case law at hand, such as those stemming from intra-EU arbitration, will not be addressed. The contribution is divided in three parts, next to the introduction. First, the notion of legitimate expectations will be analysed. Second, the Czech, Italian and Spanish cases will be addressed, briefly sketching the respective domestic legal frameworks. As a conclusion, it will be suggested that tribunals have considered the fact that a State is exercising its regulatory power, and a potential lack of investors’ due diligence, in diminishing the quantum of compensation, and that such case law adds to the establishment of general “interpretative elements” of FET.
{"title":"Recent Trends in Investment Arbitration Concerning Legitimate Expectations","authors":"Gian Maria Farnelli","doi":"10.1163/18719732-12341457","DOIUrl":"https://doi.org/10.1163/18719732-12341457","url":null,"abstract":"The article addresses how the obligation not to frustrate legitimate expectations has been interpreted and applied in recent investment disputes arising out of amendments in domestic regimes in the renewable energies sector. The analysis will address cases against Czechia, Italy and Spain, the Countries currently facing the majority of disputes for alleged breaches of the Energy Charter Treaty. Jurisdictional issues related to the case law at hand, such as those stemming from intra-EU arbitration, will not be addressed. The contribution is divided in three parts, next to the introduction. First, the notion of legitimate expectations will be analysed. Second, the Czech, Italian and Spanish cases will be addressed, briefly sketching the respective domestic legal frameworks. As a conclusion, it will be suggested that tribunals have considered the fact that a State is exercising its regulatory power, and a potential lack of investors’ due diligence, in diminishing the quantum of compensation, and that such case law adds to the establishment of general “interpretative elements” of FET.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"23 1","pages":"27-56"},"PeriodicalIF":0.7,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75378874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-31DOI: 10.1163/18719732-12341456
Cornelis Verburg
International investment tribunals are frequently required to interpret and apply rules of Customary International Law (CIL) in investor-State disputes. This article examines how investor-State tribunals, in particular those constituted on the basis of the Energy Charter Treaty (ECT), have interpreted the CIL ‘full reparation’ standard regarding damages and reparation. By reference to ECT jurisprudence it is established that tribunals often utilize teleological interpretive tools to give content to this norm. Furthermore, some critical comments are made concerning the manner in which ECT tribunals subsequently apply the ‘full reparation’ standard. It is argued that the combination of the commonly adopted approaches to interpretation and application may explain why investors are occasionally capable of obtaining significant amounts of compensation in these public law disputes.
{"title":"Damages and Reparation in Energy Related Investment Treaty Arbitrations","authors":"Cornelis Verburg","doi":"10.1163/18719732-12341456","DOIUrl":"https://doi.org/10.1163/18719732-12341456","url":null,"abstract":"\u0000International investment tribunals are frequently required to interpret and apply rules of Customary International Law (CIL) in investor-State disputes. This article examines how investor-State tribunals, in particular those constituted on the basis of the Energy Charter Treaty (ECT), have interpreted the CIL ‘full reparation’ standard regarding damages and reparation. By reference to ECT jurisprudence it is established that tribunals often utilize teleological interpretive tools to give content to this norm. Furthermore, some critical comments are made concerning the manner in which ECT tribunals subsequently apply the ‘full reparation’ standard. It is argued that the combination of the commonly adopted approaches to interpretation and application may explain why investors are occasionally capable of obtaining significant amounts of compensation in these public law disputes.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"58 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77497648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-31DOI: 10.1163/18719732-12341458
Emily Sipiorski
The principle of good faith drives forward the interpretation of provisions of international investment treaties. While the tribunal must interpret the treaty in good faith, the parties – as well as the tribunal – are also obliged to fulfil their treaty and contractual obligations in good faith. This creates a complex interplay of interpreting customary international law in the form of behavioural obligations. During this period of reconsideration of the system, these interpretative and behavioural aspects of the principle of good faith may provide an opening to a more cohesive system of investment protection. The following contribution approaches the tribunals’ power to interpret the good faith behavioural obligations of parties and considers its future value.
{"title":"Interpretation in Good Faith and Its Relevance in International Investment Law","authors":"Emily Sipiorski","doi":"10.1163/18719732-12341458","DOIUrl":"https://doi.org/10.1163/18719732-12341458","url":null,"abstract":"\u0000The principle of good faith drives forward the interpretation of provisions of international investment treaties. While the tribunal must interpret the treaty in good faith, the parties – as well as the tribunal – are also obliged to fulfil their treaty and contractual obligations in good faith. This creates a complex interplay of interpreting customary international law in the form of behavioural obligations. During this period of reconsideration of the system, these interpretative and behavioural aspects of the principle of good faith may provide an opening to a more cohesive system of investment protection. The following contribution approaches the tribunals’ power to interpret the good faith behavioural obligations of parties and considers its future value.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"37 1","pages":"57-78"},"PeriodicalIF":0.7,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85321877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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