Jus cogens: Recent Developments in International Law

Treaties & Conventions: Carpathian Convention Enters Into Force

On 6 January 2024 the Framework Convention on the Protection and Sustainable Development of the Carpathians (the "Carpathian Convention") entered into force. The Convention is designed to develop a comprehensive policy for the protection and sustainable development of the Carpathians, a transboundary mountain range shared by the seven signatories of the Convention. The signatories to the Carpathian Convention are the Czech Republic, Hungary, Poland, Romania, Serbia & Montenegro, Slovak Republic, and Ukraine.

I. Background: Development of the Carpathian Convention

In 2001 the Ukranian government requested the United Nations Environment Programme, Regional Office for Europe, "to service a regional cooperation process aim[ed] at the protection and sustainable development of the Carpathians."[1] In response, the United Nations Environment Programme promoted the Alpine-Carpathian Partnership and fostered five negotiation meetings of the Carpathian countries, resulting in the adoption of the Carpathian Convention in May 2003.[2] The Carpathian Convention is modeled on the Convention on the Protection of the Alps (the "Alpine Convention"), which entered into force in 1995.[3]

II. Substantive Provisions of the Carpathian Convention

Consisting of 23 Articles, the Carpathian Convention's general objectives mandate that the "Parties shall pursue a comprehensive policy and cooperate for the protection and sustainable development of the Carpathians with a view to inter alia improving quality of life, strengthening local economies and communities, and conservation of natural values and cultural heritage."[4]

The Carpathian Convention sets a broad framework addressing such issues as integrated land resources management, conservation and sustainable use of biological and landscape diversity, spatial planning, sustainable and integrated water/river basin management, sustainable transport and infrastructure, sustainable tourism, industry and energy, cultural heritage and traditional knowledge, and environmental monitoring and early warning.[5] As a "framework" agreement, the Carpathian Convention provides policy guidance and leaves the creation of specific protocols and policies for the Conference of Parties. For example, the Convention does not geographically define the Carpathian region, leaving that function to the Conference of the Parties.[6]

III. Current Status of States Parties

Entering into force on 4 January 2006, the Carpathian Convention has been ratified by four of the seven signatories (Czech Republic, Hungary, Slovak Republic, and Ukraine). Poland, Romania, and Serbia & Montenegro are yet to ratify the Carpathian Convention. The first Conference of the State Parties must occur no later than 4 January 2007.[7]

IV. Further Information

• The Carpathian Convention (homepage)
• Text of the Carpathian Convention
• Status of Ratification
• United Nations Environment Programme
• Alpine Convention

[1] The Carpathian Convention, "History of the Convention," available at http://www.carpathianconvention.org/history.htm.
[2] Id.
[3] See Convention on the Protection of the Alps, Nov. 7, 1991, available at http://www.convenzionedellealpi.org/page2_en.htm.
[4] Framework Convention on the Protection and Sustainable Development of the Carpathians, art. 2(1), May 22, 2003, available at http://www.carpathianconvention.org/text.htm.
[5] Id. art. 3-12.
[6] Id. art. 1(1).
[7] Id. art. 14(3).

Treaties: United Nations Convention Against Corruption Enters Into Force

On 14 December 2023 the United Nations Convention Against Corruption entered into force. The Convention seeks to prevent and combat corrupt practices of public officials, and, in some instances, the Convention also addresses corruption in the private sector. Adopted by the United Nations General Assembly in October 2003, the Convention Against Corruption addresses corruption prevention, criminalization, international cooperation, and asset recovery. Prior to its adoption, legal instruments addressing corruption existed primarily at the regional level. As of 1 January 2006, the Convention Against Corruption includes 140 signatories and 39 States Parties.

I. Background: Development of the Convention Against Corruption

In December 2000 the United Nations General Assembly passed Resolution 55/61, which called for the creation of "an effective legal instrument against corruption."[1] In Resolution 55/61, the General Assembly noted that corruption has a "corrosive effect" on "democracy, development, the rule of law and economic activity."[2] Resolution 55/61 also directed the Secretary General to prepare a report analyzing the relevant legal instruments on corruption and established a working group and an ad hoc committee for the negotiation of an international convention addressing corruption.

Pursuant to Resolution 55/61, the Secretary-General prepared a report, "Existing international legal instruments, recommendations and other documents addressing corruption," in April 2001.[3] The report presented an overview of international legal instruments addressing corruption, including instruments of the United Nations, Council of Europe, European Union, Organization of American States, and the Organization for Economic Cooperation and Development. The report also included a comparative analysis of the main provisions of these legal instruments.[4] The report concludes that existing legal instruments are regional in nature and a new international convention against corruption "represents a unique opportunity to develop a global legal instrument against corruption that can fully address the concerns of the international community as a whole and can include provisions and mechanisms applicable at a global level."[5] Also pursuant to General Assembly resolution 55/61, the Expert Group to Prepare Draft Terms of Reference for the Negotiation of an International Legal Instrument Against Corruption was held in Vienna from 30 July to 3 August 2001. The Expert Group recommended to the General Assembly the adoption of a draft resolution on the terms of reference for the negotiation of an international legal instrument against corruption. The General Assembly adopted the draft resolution as Resolution 56/260 of 21 January 2002.[6]

On 31 January 2002, in Resolution 56/260, the General Assembly decided that the Ad Hoc Committee for the Negotiation of a Convention Against Corruption should negotiate a convention, which would be referred to as the “United Nations Convention Against Corruption.” The text of the United Nations Convention Against Corruption was negotiated during seven sessions of the Ad Hoc Committee, held between 21 January 2024 and 1 October 2003.[7] The Convention approved by the Ad Hoc Committee was adopted by the General Assembly by Resolution 58/4 of 31 October 2003.[8]

II. Substantive Provisions of the Convention Against Corruption

Divided into 8 chapters, and 71 articles, the Convention Against Corruption's stated purposes include: "(a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively; (b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; (c) To promote integrity, accountability and proper management of public affairs and public property."[9] In furtherance of these purposes, the Convention addresses several aspects of corruption, including: preventive measures, criminalization and law enforcement, international cooperation, and asset recovery.

A. Preventive Measures

Chapter II of the Convention instructs each State Party to "develop and maintain effective, coordinated anti-corruption policies."[10] Such policies include the establishment of anti-corruption bodies, codes of conduct for public officials, and strengthening of judicial integrity. Preventive measures in the Convention also include the creation of transparent systems of public procurement and management of public finances. Article 12 of the Convention also addresses the prevention of private sector corruption through enhanced "accounting and auditing standards in the private sector" and "effective, proportionate and dissuasive civil, administrative or criminal penalties for failure to comply with such measures."[11] Additionally, the final preventive measure in the Convention is the directive to create a "comprehensive domestic regulatory and supervisory regime . . . to deter and detect all forms of money-laundering."[12]

B. Criminalization and Law Enforcement

The Convention Against Corruption, under Chapter III, criminalizes several acts by public officials, including: bribery of public officials and embezzlement or misappropriation by a public official. The Convention also suggests for State Parties to criminalize the offenses of trading in influence, abuse of functions, illicit enrichment, private sector bribery, and private sector embezzlement.[13] The laundering of the proceeds of a criminal offense is also criminalized by Article 23 of the Convention.

C. International Cooperation

Article 43 of the Convention instructs State Parties to cooperate in the prosecution of criminal offenses established in accordance with the Convention. Forms of cooperation under the Convention include extradition, transfer of sentenced persons, mutual legal assistance, transfer of criminal proceedings, law enforcement cooperation, joint investigations, and special investigative techniques.[14]

D. Asset Recovery

Chapter V of the Convention establishes measures for the return of assets, a fundamental principle of the Convention. These measures include the prevention and detection of transfers of proceeds of a corruption crime via identify verification of financial institution customers and "enhanced security" of financial institutions "reasonably designed to detect suspicious transactions."[15] Other measures include the direct recovery of property and mechanisms for recovery of property through international cooperation in confiscation.[16] Non-binding measures include the possible establishment of financial intelligence units by States Parties and/or bilateral or multilateral agreements or arrangements.[17]

III. Signatories, Ratification & Entry into Force

Currently, there are 140 signatories to the Convention and 39 States Parties. Entering into force on 14 December 2005, subsequent ratifications or accessions to the Convention "shall enter into force on the thirtieth day after the date of deposit by such State or organization of the relevant instrument."[18] A complete list of signatories may be found on the UN Office of Drugs and Crime website.

IV. Further Information

• Text of the Convention Against Corruption
• UN Office of Drugs and Crime: Corruption
• General Assembly Resolution 55/61
• General Secretary Report pursuant to Resolution 55/61
• Report of Ad Hoc Committee for Negotiation of Convention Against Corruption

[1] UN General Assembly, Res 55/61, Dec. 4, 2000, available at http://www.unodc.org/pdf/crime/a_res_55/res5561e.pdf.
[2] Id.
[3] United Nations Economic and Social Council, Report of the Secretary General: Existing international legal instruments, recommendations and other documents addressing corruption, UN Doc. E/CN.15/2001/3, April 2, 2001, available at http://www.unodc.org/pdf/crime/10_commission/3e.pdf.
[4] Id. at para. 34-127.
[5] Id. at para. 214.
[6] UN General Assembly, Report of the Ad Hoc Committee for the Negotiation of a Convention against Corruption on the work of its first to seventh sessions, UN Doc. A/58/422, Oct. 7, 2003, available at http://www.unodc.org/pdf/crime/convention_corruption/session_7/422e.pdf.
[7] UN Office on Drugs and Crime, "United Nations Convention against Corruption," http://www.unodc.org/unodc/en/crime_convention_corruption.html.
[8] Id.
[9] United Nations Convention Against Corruption, October 31, 2003, art. 1, available at http://www.unodc.org/pdf/crime/convention_corruption/signing/Convention-e.pdf [hereinafter "Convention"].
[10] Id. art. 5.
[11] Id. art. 12.
[12] Id. art. 14.
[13] Id. art. 15-20.
[14] Convention, supra note 9, art. 44-50.
[15] Id. art. 52.
[16] Id. art. 53-55.
[17] Id. art. 58-59.
[18] Id. art. 68(2).

United States & Cyprus Sign Proliferation Security Initiative (PSI) Ship Boarding Agreement

On 25 July 2024 the United States and the Republic of Cyprus signed a bilateral agreement under the auspices of the Proliferation Security Initiative (PSI). The PSI is a response by the United States, announced by President Bush in May 2003, to address "increasingly aggressive efforts by [weapons of mass destruction] proliferators to circumvent existing nonproliferation norms, and to profit from such trade."[1] The PSI's objectives include utilizing "existing national and international legal authorities" while strengthening "these authorities to meet today's WMD proliferation challenges."[2] The PSI is based upon a number of interdiction principles, which include:

• undertaking effective measures for interdicting the transport of WMD and related materials;
• adopting procedures for rapid information exchange;
• strengthening national and international legal authorities and frameworks;
• boarding and searching suspect vessels flying a State's respective flag;
• consenting to the boarding and searching of flag vessels by other States; and
• requiring suspect aircraft in a State's airspace to land for inspection and seize any WMD cargoes.[3]

Entitled as an "Agreement Between the Government of the United States of America and the Government of the Republic of Cyprus Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials By Sea," the Agreement addresses the boarding and searching of flag vessels interdiction principle. The U.S.-Cyprus Agreement is the fifth ship boarding agreement the U.S. has signed under the auspices of the PSI. Similar agreements have been reached with Croatia, Panama, the Marshall Islands, and Liberia.

Specifically, the Agreement provides authority to "Security Force Officials" of either State to board suspect vessels of the other State in international waters after confirmation of the vessel and authorization to board is made by the non-boarding State.[4]. A vessel is determined "suspect" if "sufficiently reliable information forming the basis for the suspicion" exists and is included in the authorization request. This authorization includes the ability to detain the vessels, cargo, and persons on board "if evidence of proliferation is found," which is defined as nuclear, chemical, biological and radiological weapons or their delivery materials.[5] The treaty also stipulates that all uses of force "shall be in strict accordance with the applicable laws and policies of the Party conducting the boarding and with applicable international law."

According to the U.S. Department of State, the five bilateral PSI ship boarding agreements account for more than sixty percent of "the global commercial shipping fleet dead weight tonnage."[6]

[1] U.S. Dep't of State, Bureau of Public Affairs, Combating Proliferation: Proliferation Security Initiative 11 (2003).

[2] Id. See, e.g., Convention on the Physical Protection of Nuclear Material, Feb. 23, 1987, 1456 U.N.T.S. 101 (including recent amendments including nuclear facilities).

[3] Id.

[4] Agreement Between the Government of the United States of America and the Government of the Republic of Cyprus Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials By Sea, July 25, 2005, U.S.-Cyprus, art. 4.

[5] Id at art. 1, 4.

[6] U.S. Dep't of State, The United States and the Republic of Cyprus Proliferation Security Initiative Ship Boarding Agreement, July 2005.

Amendments to the Convention on the Physical Protection of Nuclear Material

On Friday, 8 July 2005, the Conference to Consider and Adopt Proposed Amendments to the Convention on the Physical Protection of Nuclear Material (the "CPPNM") agreed "to fundamental changes that will substantially strengthen the [CPPNM]." [1]  The amendments update and modernize the CPPNM, recognizing the dynamic nature the security and protection of nuclear material used for peaceful purposes presents to Contracting States.

I. Background: Creation of the CPPNM & the Need for Amendment

The CPPNM, opened for signature on 3 March 1980, obliges Contracting States to protect nuclear materials used for peaceful purposes during international transport.[2] The CPPNM developed at a time when the primary concern for the protection of nuclear material concentrated on the transport of nuclear material. States viewed transport of nuclear material, especially international transport, as the highest risk activity related to nuclear material and developed the CPPNM to create international obligations and enforcement mechanisms for States Parties. The CPPNM contains "provisions related to nuclear material used for peaceful purposes while in domestic use, storage and transport. The Convention establishes measures related to the prevention, detection and punishment of offenses relating to nuclear material."[3] Presently, there are 112 States Parties to the CPPNM and 45 Signatories.[4] The International Atomic Energy Agency (the IAEA) is the depositary of the CPPNM, charged with administering the CPPNM's status and any declarations or reservations.

The CPPNM's drafters, however, did not address the security and protection of nuclear facilities. The CPPNM only applies to transport of nuclear materials used for peaceful purposes. It does not affect nor present obligations regarding the security and protection of nuclear facilities, including nuclear power plants. To fill the void the CPPNM left in regards to the security and protection of nuclear facilities, the IAEA developed policy guidance regarding the physical protection of nuclear material and nuclear facilities.[5] Besides the obligations of the CPNNM, the IAEA guidance also addresses the physical protection of nuclear material against unauthorized removal and sabotage.[6] The IAEA guidance, however, does not obligate or create enforcement mechanisms under international law beyond the CPPNM's restrictions on transport of nuclear materials.

To address the CPPNM's deficiencies, especially those concerning the security of nuclear facilities from the threats of unauthorized removal and sabotage, the July 2005 Conference was called "to adopt amendments to the Convention designed to strengthen its existing provisions and expand its scope to cover, among other points, the physical protection of nuclear material used for peaceful purposes, in domestic use, storage and transport; and the physical protection of nuclear material and peaceful nuclear facilities against sabotage" and unauthorized removal.[7]    

II. Treaty Amendments Under International Law

Treaty amendments are governed by the Vienna Convention on the Law of Treaties.[8] Generally, "a treaty may be amended by agreement between the parties."[9] Article 40 of the the Vienna Convention prescribes that all contracting States must be notified and possess the right to participate in the negotiation and creation of proposed amendments.[10] Article 40 also instructs that "the [treaty's] amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement." [11] The manner and procedure for amendment is usually specified in the original treaty. Accordingly, article 20 of the CPPNM provides for the amending procedure, which resulted in the July 2005 Conference. [12]

III. States Parties Obligations Under the Amended CPPNM

The amendments to the CPPNM will create legal obligations and enforcement mechanisms for contracting States beyond the transport of nuclear material. The amendments include provisions to bring the unauthorized removal and sabotage of nuclear material within the CPPNM's framework.[13] These amendments update the CPPNM and provide legal force to the previously discussed IAEA guidance. IAEA Director General Mohamed ElBaradei commented "this new and stronger treaty is an important step towards greater nuclear security by combating, preventing, and ultimately punishing those who would engage in nuclear theft, sabotage or even terrorism. It demonstrates that there is indeed a global commitment to remedy weaknesses in our nuclear security regime."[14] The amendments "will also provide for expanded cooperation between and among States regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences of sabotage, and prevent and combat related offences."[15]

IV. Ratification of the Amended CPPNM, the New CPPNMNF

The amendments will not enter into force "until the thirtieth day after the date which two thirds of the [112] States Parties have deposited their instruments of ratification, acceptance or approval with the [IAEA]."[16] Upon ratification, the CPPNM will be renamed the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities.

Footnotes

[1] IAEA, States Agree on Stronger Physical Protection Regime, ¶1 (July 8, 2024) <http://www.iaea.org/NewsCenter/PressReleases/2005/prn200503.html>.

[2] Convention on the Physical Protection of Nuclear Material, Feb. 23, 1987, 1456 U.N.T.S. 101 [hereinafter CPPNM].

[3] IAEA, International Conventions & Agreements: Convention on the Physical Protection of Nuclear Material, ¶2 (visited July 9, 2024) <http://www.iaea.org/Publications/Documents/Conventions/cppn.html>. See CPPNM, supra note 2, arts. 7-10.

[4] IAEA, Status: Convention on the Physical Protection of Nuclear Material, (May 11, 2024) <http://www.iaea.org/Publications/Documents/Conventions/cppn_status.pdf>.

[5] See The Physical Protection of Nuclear Material and Nuclear Facilities, IAEA Doc. INFCIRC/225/Rev.4.

[6] See id.

[7] IAEA, supra note 3, at ¶3.

[8] Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].

[9] Id. at art. 39.

[10] Id. at art. 40(2).

[11] Id. at art. 40(4).

[12] CPPNM, supra note 2, at art. 20(1).

[13] IAEA, Conference to Consider and Adopt Proposed Amendments to the Convention on the Physical Protection of Nuclear Material: The Basic Proposal, IAEA Doc. CPPNM/AC/L.1/1 (April 28, 2024).

[14] IAEA, supra note 1, at ¶2.

[15] Id. at ¶3.

[16] CPPNM, supra note 2, at art. 20(2).