Tag Archive | "treaty"


Critical Analysis: The International Efforts to Protect Marine Biodiversity

For four days in the first week of April, the United Nations held meetings to negotiate the possibility of a new international treaty to protect marine biodiversity. The UN working group, High Seas Alliance (HSA), a partnership of 27 non-governmental organizations, plus the International Union for the Conservation of Nature (IUCN), discussed creating a new treaty to provide additional conservation measures and to improve sustainable use of marine resources. HSA noted that the high seas and the seabed area make up 45 percent of the surface of the planet, making it a valuable resource. However, that valuable resource and all of the wildlife in it are currently under severe threat from habitat loss, climate change, ocean acidification, pollution, and overexploitation in commercial fisheries.

Without additional conservation efforts by the international community many marine species may face extinction. Image Source: Public Domain Images

Without additional conservation efforts by the international community many marine species may face extinction. Image Source: Public Domain Images

If a new treaty can be created for protecting marine biodiversity, it will fall under the umbrella of the Convention on the Law of the Seas, which governs all aspects of ocean space, including the delimitation of maritime boundaries, exploitation of living and non-living resources, protection and preservation of the marine environment, marine scientific research, and the settlement of relevant international disputes. In the past the UN Secretary-General Ban Ki-Moon has encouraged more countries to join the UN Convention on the Law of the Seas. The Convention has been in force since 1994 and currently 165 of the 193 UN members have ratified it.

A new treaty could be crucial, as the UN points out, “[m]arine biodiversity is vitally important for human well-being as it underpins a wide range of ecosystem services on which life depends.” In addition, not only is the possible treaty important but at the 2012 (Rio+20) meeting in Brazil the UN Member states committed to address marine biodiversity in order to preserve and restore healthy and productive oceans with rich marine biodiversity in order to ensure food security and the livelihoods of millions of people. Unfortunately, that same year the UN Food and Agriculture Organization released a report indicating that 87% of the world’s fisheries were either overexploited or fully exploited. Likewise, a new report released by Oceana explains that we still have a major problem with U.S. fisheries wastefully discarding by-catch. Every year 2 billion pounds of unintentionally caught fish or other marine animals are injured or killed by fishing practices and then tossed overboard. Poor resource management will diminish the global efforts to achieve a restored, healthy marine ecosystem.

According to a senior advisor of Greenpeace International, Sofia Tsenikli, urgent action is needed to protect the oceans. She expressed, “It’s simply scandalous that still less than one percent of the high seas is protected.” The UN Secretary-General also called on countries to take action to achieve the Aichi Biodiversity Target of conserving 10% of marine and coastal areas by 2020. The Aichi Targets were adopted in 2010 at a Conference in Aichi, Japan. Target 6 read: By 2020, all fish and invertebrate stocks and aquatic plants are managed and harvested sustainably, legally and applying ecosystem based approaches, so that overfishing is avoided, recovery plans and measures are in place for all depleted species, fisheries have no significant adverse impacts on threatened species and vulnerable ecosystems and the impacts of fisheries on stocks, species and ecosystems are within safe ecological limits.

After meeting last week, the High Seas Alliance will continue the discussion into the future and will present its recommendations on the possible international marine biodiversity treaty to the General Assembly in September 2015. There is hope for change as some countries are taking action now to address the existing threats. For example, Vietnam just released a new national strategy to confront several issues of concern for its marine ecosystem. The Vietnamese plan calls for an increase of 30% of their mangrove forests by 2020, an effort to maintain its coral reefs, and an effort to prevent aquatic species from becoming threatened with extinction. The government plans to implement the strategy by raising awareness about marine resources and providing training on sustainable management of the environment.

Also, just last month the governments of Bermuda, Monaco, the Azores, the United Kingdom, and the United States came together to sign a declaration to conserve the Sargasso Sea. The declaration is called the ‘Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea’ – also known as the ‘Hamilton Declaration’ and it is the first time an international alliance has voluntarily come together to protect a high seas ecosystem using the existing international legal framework. The Sargasso Sea is located in the mid-Atlantic and is known for its unique floating seaweeds and rich biodiversity. The Sea is under pressure from wastewater discharge from ships, pollution, fishing, harvesting of Sargassum algae for fertilizer and biofuel production, and seabed mining. Government representatives from Sweden, Turks and Caicos Islands, British Virgin Islands, the Netherlands, Bahamas and South Africa expressed support for the declaration, together with five international organizations. The Hamilton Declaration, although a non-binding agreement, will serve as a platform to minimize adverse effects in the Sargasso Sea, which is home to numerous species such as angelfish, whales, dolphins, tuna, turtles, sharks, rays, and European and American eels.

While the international community awaits the results of the UN working group’s meetings and discussions on a potential new treaty, other efforts made around the globe may help to mitigate the anthropogenic influences currently damaging our marine ecosystems. However, without further collaborative attempts to preserve our resources some marine species may end up permanently wiped out.


Kristen Pariser is a 3L, a Staff Editor for the Denver Journal of International Law and Policy, and the Executive Editor for The View From Above blog.

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Critical Analysis: Presidential Powers and the Use of the Executive Agreement

When the Constitution was originally drafted, the Founders thought it appropriate to give the president the power to make treaties with other nations. However, the president’s power was restricted; under Article 2, Section 2 of the U.S. Constitution, the president could only make a treaty by and with the advice and consent of the Senate. Additionally, a never easy two-thirds senate approval was required. Without the approval, the President did not have the authority to enter into a treaty with any other sovereign nation. The treaty process is the same today. Yet, there seems to be another means of obtaining similar results: an executive agreement. The Constitution does not provide any process in which an executive agreement must be conducted. Rather, the practice of conducting executive agreements has been validated (to what extent is unclear) through rulings of the Supreme Court and the practice of the political branches. The question I am asking is: how broad is the president’s power to use executive agreements, and what are the future implications of that power?

The President signing the Russian Arms Treaty in 2010. Image Source: Wikimedia Commons

The President signing the Russian Arms Treaty at a ceremony in 2010.
Image Source: Wikimedia Commons

Treaties and executive agreements are drafted and signed many times each year. Originally, treaties were much more common than executive agreements; however, that is not the case today. After WWII, the executive agreements were used much more frequently than treaties. Many believed this was because of the increasing difficulty to get a two-thirds senate approval. The president has the ability to enter into sole executive agreements without any approval from the House or Senate. The shift from treaties to executive agreements has arguably eliminated the checks and balances the founders, when drafting the treaty clause, intended to put upon the executive branch. The countering argument is that the founders intended to give the president a broader grant of power when they added the vesting clause to the Constitution.

Executive agreements appear to have the same effect as treaties. They are binding upon both parties, and the Supreme Court has found them to preempt state law. This leads to the question of how broad is the president’s powers in entering into executive agreements? There seems to be some constraint upon which issues the president can execute sole executive agreements. The limitation appears to limit the subject matter to issues in which the president already has the power to direct, namely foreign affairs. The president cannot use a sole executive agreement to usurp congressional powers; however, the court has not dealt with this question directly.

What this all means is still unclear. But one thing that is certain is there will be uncertainty moving forward. Over the past few years, we have seen the issue come up time and time again. In 2009, President Obama declared he would temporarily bypass Senate ratification if a Russian Arms treaty was not ratified (it eventually was ratified in 2010), showing that he believed he had the power to bypass the requirements of the treaty clause. Specifically, he believed he could use an executive agreement when dealing with Arms relations internationally, something that had only previously been done through treaties.

President Obama’s belief that he has great autonomy in using executive agreements was shown recently in his speech at the White House addressing the conflict in Syria. President Obama stated, “Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know the country will be stronger if we take this course, and our actions will be even more effective.” Though it appears the President believes he has complete autonomy in using executive agreements, other factors are considered when making the decision of whether or not to include other branches of the government for approval. Other controversial uses of this power have been the Anti-Counterfeiting Trade Agreement signed in 2011, which potentially would authorize foreign companies to effectively remove web content in the United States without legal oversight. Additionally, the Afghanistan Bilateral Security Agreement could potentially put troops overseas for another 10 years without a two-thirds senate approval.

In the end, giving the president this power appears to be what the legislative and judicial branches are wanting, or at very least accepting. There doesn’t seem to be much fight regarding where the president is deriving the power to enter into such agreements. It appears the only source of power is derived from past practices and the vesting clause in the Constitution, but to what limits? Which begs the questions, why isn’t there more of a fight from the legislative branch to restrict the president’s power? How far will the power be allowed to go, and at what point will the president’s power be constrained? Only time will tell the role of the treaty clause moving forward. Will it be set aside while executive agreements take control? Or will there continue to be a middle ground where both have a place in foreign affair relations?

Brixton Hakes is a second year law student and a Staff Editor on the Denver Journal of International Law and Policy

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Sources: CNN, AFP, BBC

News Post: Sudan and S. Sudan Sign Agreement to Open Border

Sources: CNN, AFP, BBC

Sources: CNN, AFP, BBC

This week, the countries of Sudan and South Sudan signed their first accord since South Sudan gained independence in July. The two sides, in a deal mediated by officials from the African Union, agreed to open ten border crossings between the two countries. They will consult with the joint technical committee responsible for border demarcation before meeting again next month to determine the final locations of the crossings. Six soldiers from each country and six neutral soldiers from Ethiopia will guard the border crossings.

According to the BBC’s James Copnall, “the real significance of the deal is perhaps that it shows Sudan and South Sudan want to show they can work together.” The two countries appeared optimistic that the deal could improve the relationship between the two countries. After the signing of the agreement, Sudan’s Defense Minister, Abdelrahim Mohammed Hussein, said, “today we agreed to open 10 border crossings, to facilitate the movement of people and communication between the people of the two countries,” and South Sudan’s Defense Minister, John Kong, described the meeting as “successful.”

Despite the agreement, the demarcation and the security of the border between the two countries remains a major issue. Three separate conflicts have occurred in the border region in the last few months. Fighting persists in the Sudanese border states of South Kordofan and Blue Nile between the Sudanese army and ex-rebels with ties to South Sudan. Three hundred UN-sanctioned Ethiopian troops remain at the border to monitor a demilitarized zone that is six miles wide on both sides of the border.

The relationship between the two countries remains tense, as both sides have declared the other has violated the separation agreement. Sudan accused South Sudan of supporting rebels fighting in border states, which South Sudan denies. However, Sudan appears to be retreating from that position after Defense Minister Hussein stated, “there are no allegations against the government of South Sudan and there are no differences between us on Blue Nile and South Kordofan.” On the other hand, South Sudan has recently accused Sudan of attempting to damage its economy with a cargo embargo, causing runaway inflation within the newly formed country.  Sudan proffers that it implemented the embargo to protect its own economy before South Sudan’s independence.

Although the agreement to open the border shows the two countries are willing to work together, there is still a long way to go before the conflict between the two countries is settled. The border remains disputed, without demarcation, a process that will inevitably increase tensions, as both sides assert claim jurisdiction over Abyei. The two sides have also failed to form an agreement on oil. However, any agreement and cooperation between the two countries represents a positive step towards settling the conflict and achieving peace in the region.

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Treaty of Nanjing

Chinese Perspectives Part 2: History

To understand anything about the contemporary Chinese perspective on international law, one must have a cursory understanding of China’s history of international relations. In this regard, Chinese history can be divided into three distinct periods: 1842 to 1949, 1949 to 1978, and 1978 to the present.

Treaty of Nanjing

Treaty of Nanjing

The first period begins on August 29, 1842 with the coerced signing of the Treaty of Nanjing and ends on October 1, 1949 with the creation of the People’s Republic of China. Professor Wang described this period as “the unequal treaty regime” because it was characterized by China signing treaties with imperial powers while under duress; treaties which were highly detrimental to China’s own interests.


The most egregious example from this period came in the form of the infamous Twenty-one Demands made by Japan upon China. In 1915, the Qing Dynasty had just been overthrown in the Xinhai Revolution, leaving China in a politically vulnerable state of transition. At the same time, Japan had recently emerged as an imperialist power after its victories in the First Sino-Japanese War and the Russo-Japanese War. With an eye towards “gobbling up the whole of China, ” Japan occupied the Chinese province of Shangdong and presented the Twenty-one Demands to the President of the New Republic of China, along with an ultimatum that the Chinese president accede to the demands or Japan would retaliate with the use of force. Accordingly, President Yuan Shikai signed this treaty of “national betrayal and humiliation ” which, inter alia: recognized Japan’s predominant position in Shangdong, Manchuria, and Inner Mongolia, provided for the joint Japanese-Chinese operation of China’s iron and steel industries, and mandated control by Japan of China’s political, financial, and police administrations through the imposition of Japanese officials within Chinese administrative structures.

The Twenty-one Demands are representative of many of the treaties China signed during the unequal treaty regime in that they were between China and an imperialist power, signed under duress, accompanied by a threat of force, and contained provisions that seriously impaired China’s sovereign integrity. Chen Tiqiang explains the paradigm by stating, “The whole system of international law, its principles and its rules, were considered operative essentially only in relations among Western powers, the co-called ‘civilized’ or ‘Christian’ countries, while China was not a ‘civilized’ country.”

The second pertinent period began on October 1, 1949 with the founding of the PRC and ended in 1978 when China began its process of “opening up.” During this period, China was actively precluded from participation in the development of international law. Western powers simply did not regard the People’s Republic of China as a legitimate state, such that it could be a part of the international community. As a result, the most populous country in the world was not admitted to the United Nations until October 25, 1971.

During this second period, China developed its own identity relative to the world and began the process of institutionalizing international law in society. Because of its unique situation, China established what could be described as a dual identity during the Cold War period. On the one hand, China found an obvious ally in the Eastern Bloc due to a shared political and economic ideology. On the other hand, China identified with developing countries due to their shared history and troubles. With this identity in mind, China began inviting legal scholars to China to develop a system of diplomacy in accordance with international legal principles. China sought to conduct its international affairs using the principles of equality, mutual benefit, and mutual respect for territorial integrity and sovereignty.

Only during the final period, starting in 1978 when China opened up economically and continuing to the present, did it become a full member of the international community. Since then, it has become party to over 300 multilateral conventions and is now active in the creation of international law in all fields. In 2009, the Chinese Society of International Law conducted a study which found that over 600 universities offer courses in international law, 64 universities offer masters programs, and 16 universities offer doctoral programs. The importance placed on international law in the modern Chinese educational system shows that China takes the development of international law seriously and sees itself as an important player in the process.

In short, China has gone from being a victim of international law to an outside observer of international law and is now an active participant in international law. Contrasting this history with that of the Western powers, who have been active and equal participants in the development of international law since its inception, makes it easy to understand why a pronounced difference in perspectives persists. While an appreciation for Chinese history is essential in understanding China’s position on all areas of international law, it is particularly relevant to the nation’s position on the concept of sovereignty. The next installment of this series will focus on the importance China places on state sovereignty.

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University of Denver Sturm College of Law