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).

Treaties & International Organizations: United States Deposits Ratification of Inter-American Convention Against Terrorism with the Organization of American States

On 15 November 2005, the United States deposited its instrument of ratification to the Inter-American Convention Against Terrorism. Deposited at the Organization of American States headquarters in Washington, D.C., the Convention will enter into force on 15 December 2005.

I. Background:  the Organization of American States and the Inter-American Committee Against Terrorism

The Organization of American States ("OAS") is governed by the Charter of the Organization of American states ("OAS Charter"), which was signed by 21 signatories in 1948.[1] Prior to signing the OAS Charter, the same 21 States participated at the Ninth International Conference of American States in Bogota, Colombia, from 20 March-2 May 1948, which resulted in the drafting of the OAS Charter.[2] Prior to the establishment of the OAS, similar regional organizations existed, including the Commercial Bureau of American Republics, which was formed in 1890, and later, the Pan American Union. Today, all 35 independent countries of the Americas are members of the OAS.[3] The OAS Charter includes the "Nature and Purposes" of the OAS and also provides a number of "Principles and Fundamental Rights and Duties of States."[4]

In 1998 at the Second Inter-American Specialized Conference on Terrorism, the OAS States adopted the Commitment of Mar de Plata.[5] The Commitment of Mar de Plata included the creation of the Inter-American Committee Against Terrorism ("CICTE") under the auspices of the OAS. The objectives of CICTE, include: enhancing the exchange of information, including the establishment of an Inter-American database on terrorism issues; formulating proposals to assist member states in drafting counter-terrorism legislation; compiling bilateral, sub regional, regional and multilateral treaties and agreements signed by member states; enhancing border cooperation and travel documentation security measures; and, developing activities for training and crisis management.[6]

II. The Inter-American Convention Against Terrorism

The OAS General Assembly adopted the Inter-American Convention Against Terrorism ("IACAT") on 3 June 2002.[7]  The IACAT entered into force 10 July 2003, after six countries became party. As of 15 November 2023 there are 34 Signatories and 14 Parties to the Convention.[8] The IACAT defines terrorism "offenses" by incorporating the definition of offenses in the following international instruments:

 
• Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 2023  
• Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971.  
• Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973.
• International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979.
• Convention on the Physical Protection of Nuclear Material, signed at Vienna on March 3, 1980.
• Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988.
• Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988. 
• Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988.
• International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997.
• International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999. [9]

The State Parties to the IACAT are only obligated to the above international instruments, for purposes of defining offenses, if the State is a Party to the particular international instrument.[10] The IACAT also obligates State Parties to undertake the following: take certain measures to prevent, combat, and eradicate the financing of terrorism; deny refugee or asylum status to suspected terrorists; and, cooperate on border controls and among law enforcement authorities.[11]

III. Further Information:

• Organization of American States
• Inter-American Convention Against Terrorism
• Charter of the Organization of American States
• Inter-American Committee Against Terrorism
• Enrique Lagos & Timothy Rudy, "Preventing, Punishing, and Eliminating Terrorism in the Western  Hemisphere: A Post-9/11 Inter-American Treaty," 26 FORDHAM INT'L.   L. J. 401 (2003).

[1] Charter of the Organization of American States, April 30, 2024 [hereinafter "OAS Charter"].
[2] OAS, "THE OAS AND THE INTER-AMERICAN SYSTEM," available at <http://www.oas.org/documents/eng/oasinbrief.asp>.
[3] Id. Cuba remains a member, but its government has been excluded from participation in the OAS since 1962.
[4] OAS Charter, Chapters I & IV.
[5] OAS, Commitment of Mar de Plata, November 23-24, 1998.
[6] OAS, Inter-American Committee Against Terrorism, "Our Mission," available at <http://www.cicte.oas.org/English/index.htm>.
[7] OAS General Assembly, AG/Resolution 1840(XXXII-0/02), June 3, 2002.
[8] OAS, Signatories & Ratifications to the Inter-American Convention Against Terrorism, available at <http://www.oas.org/juridico/english/sigs/a-66.html>.
[9] Inter-American Convention Against Terrorism, June 3, 2002, art. 2(1).
[10] Id. art. 2(2)-(3).
[11] Id. art. 4-13.

Recent Scholarship & Treaties: Examining and Understanding "Treaty Exit"

Laurence Helfer, Exiting Treaties, 91 Va. L. Rev. 1579 (2005) (full text, pdf)

In the latest issue of the Virginia Law Review, Professor Helfer presents an analysis of "treaty exit," specifically, the unilateral exit by States from international conventions and organizations. The analysis includes six "distinguishing characteristics" of treaty exit and empirical evidence of treaty exit since 1945. After concluding the topic of treaty exit has been largely ignored by legal scholars and international relations theorists, Helfer presents a framework to "rethink" treaty exit from both an international law and international relations perspective. Based on this framework, Helfer provides a "blueprint for future research" for the "under-explored phenomenon of treaty exit."

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Welcome to Juscogens.net - International Law Treaties & Conventions, part of the juscogens.net website, which is dedicated to recent developments in the field of public international law. Juscogens.net - International Law Treaties & Conventions aims to provide timely information regarding news, events, and happenings concerning international law treaties & conventions.

A corollary purpose of Juscogens.net - International Law Treaties & Conventions is to provide a convenient, centralized location of online public international law resources for scholars, attorneys, students, and others. Permanent and dynamic resources include links to treaties and conventions available online. About the Editor: I am an attorney admitted to practice in the State of New York with a specialized interest in public international law. I am a graduate of both Washington University School of Law and Princeton University.