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The principle of the attribution, or conferral, of powers is undisputed and lies at the heart of debates on the competences of international organizations. A more specific question concerns whether and to which extent organs of an international organization may establish other organs. The importance of the case analysed in the present Chapter, is that it reveals that the competence of an organ to decide on it own competence may be far-reaching. The question arose whether the United Nations Security Council had not exceeded its powers by establishing the International Criminal Tribunal for the Former Yugoslavia in the year 1993.

In academic debates on the responsibility of international organizations and their member States the different identities of States play a crucial role. However, apart from the difficulty to clearly separate ‘State’ and ‘member State’ identities, it is even more complex to distinguish between the different roles ‘member States’ may have in the framework of international organizations. As a general introduction to this special forum, this essay aims to clarify the different identities and roles States may have in relation to international organizations, especially in the context of the responsibility of international organizations. As the subsequent contributions reveal, the law on the international responsibility of international organizations takes account of the possible responsibility of their members. By mapping the different identities States may have in different settings, this contribution argues that such differentiations may be crucial for the further development of adequate international rules on the responsibility of international organizations and their members.

Legislation is often only part of a broader solution combining formal rules with other non-binding tools such as recommendations, guidelines, or even self-regulation within a commonly agreed framework.

De Organisatie voor Veiligheid en Samenwerking (OVSE) wordt in de handboeken over het recht der internationale organisaties vaak als hét voorbeeld gebruikt van een organisatie die niet voldoet aan een van de 'standaardcriteria' voor het zijn van een internationale organisatie, te weten oprichting op basis van een verdrag. Ook op andere punten doen de deelnemende staten hun uiterste best om aan te geven dat het hier niet om een 'echte' internationale organisatie gaat. Inderdaad wijkt de ontstaansgeschiedenis van de OVSE af van die van veel andere organisaties en brengen de gemaakte institutionele keuzes geheel eigensoortige problemen en mogelijkheden mee. Dit artikel gaat aan de hand van de wijziging van Conferentie over Veiligheid en Samenwerking (CVSE) in OVSE in op juridische gevolgen van institutionele veranderingen bij internationale samenwerkingsvormen.

At present, we see that a new generation of international investment agreements (IIAs) is being negotiated, e.g. CETA, TTIP and multiple European Union trade and investment treaties. In these processes, negotiators of contracting states articulate the issue of the host state’s ‘right to regulate’ and discuss in which way, in IIAs, ‘policy space’ can be preserved for host states. The goal is to ensure that a host state, which wants to welcome foreign direct investment, retains the power to change its existing policies and introduce new ones in furtherance of public interests, and/or in order to comply with its obligations under international human rights, environmental and health treaties. Nonetheless, the host state also needs to provide the foreign investor with a certain level of ‘investment protection’ and comply with international investment law standards, such as the fair and equitable treatment standard (FET). The FET standard has become one of the most important pillars of foreign investment protection under international investment law. The number of investment decisions in which this standard has been evoked, has grown enormously in the last two decades. Many of these conflicts reveal that on the one hand a foreign investor has an expectation of a ‘stable legal and business environment’, which is essential for the planning of investments. On the other hand, host states have a duty to regulate in the public interest, particularly in the light of ‘changing social, economic and political circumstances’. In this book, an overview of the various types of FET clauses in IIAs is presented as well as an analysis of pertinent case law. In the analysis of the cases, the question is addressed in which way a host state can lawfully exercise its right to regulate in the public interest, while remaining in compliance with its obligation to provide fair and equitable treatment to a foreign investor under applicable IIA(s). Reviewing the case law of the last decades, it has however become clear that the text of many existing IIAs does not offer sufficient clarity regarding the legal conditions that apply (i) to a host state’s right to regulate and (ii) to the investor’s protection under the FET standard provisions. Hence, striking the balance between the interests of host states on the one hand, and investors on the other, has proved to be challenging for tribunals. The trends in the case law are articulated and compared with the latest trends in treaty drafting. In particular, the newest generation of IIAs and those that are currently under development draw inspiration from ground-breaking cases. This study examines whether, and if so to what extent, in such investment cases and the new generation of IIAs, the balance between the host state’s right to regulate and the protection afforded to the foreign investor under the FET standard has shifted. This book will be useful for treaty drafters, policymakers, practitioners, and academics to understand the complexities concerning exercising the right to regulate and applying the FET standard.

Climate change has arisen as the most pressing global challenge of our time. In the post-1989 economic consensus based on market mechanisms and eschewing command and control regulation, the concerted global response to this problem has taken the form of flexibility mechanisms harnessing the market in order to steer development in the direction of a low-carbon economy. From this perspective, the flow of foreign investment towards developing countries – and in 2012 for the first time investment flows to developing countries surpassed those between developed countries – can be one of the most effective tools to pursue an environmentally sustainable and climate-friendly economic development. The legal response to climate change, exemplified by the measures contained in the Kyoto Protocol – Clean Development Mechanism (CDM), Joint Implementation (JI) and International Emission Trading (IET) – is designed to harness foreign investment for sustainable development and emission reduction projects by providing economic incentives for the transition to a low-carbon economy. On the downside, the mechanisms, when employed within global value chains for the production of consumption goods for developed countries’ markets, can be used to offshore emissions from developed to developing and least developed countries without achieving an overall reduction in carbon emissions. As these countries do not have emission reduction targets, any failure down the chain of production in projects started under the aegis of the CDM, for example, might result in a net increase of emissions (so-called ‘carbon leakage’).The picture from within the investment regime is equally mixed. Traditionally, the investment regime has been instrumental in reducing the regulatory risk for foreign investors; in the case of environmental measures this meant protection against the ratcheting up of standards to the detriment of investors engaged in highly polluting and/or carbon intensive sectors such as mining and extractive industries. Numerous investment arbitrations have concerned environmental measures and this has been the case especially under the umbrella of the NAFTA. The rise of ‘environmental’ arbitrations has functioned as a catalyst for changes within the investment regime in the direction of its diversification, clarification and hybridisation. In fact, the latest UNCTAD Investment Report confirms the trend towards the inclusion of ‘sustainable-development-friendly provisions’ in International Investment Agreements (IIAs), via the insertion of clauses dealing with environmental, labour and human rights measures.The fact that investors might avail themselves of IIAs to protect climate-friendly investments from non-commercial regulatory risk is certainly not noteworthy per se – the ‘legitimate expectations’ doctrine and contractual stabilization clauses have been developed precisely to deal with this sort of risk – and yet, in the quest for legitimacy of the investment regime, this has been presented as another added value. From this synergic perspective, IIAs are presented as providing a further layer of protection of ‘green investors,’ against loosening/reducing of support mechanisms used to attract low-carbon investments and switching projects.This synergic potential notwithstanding, conflicts arising by regime intersection have attracted more attention. In this chapter, as in much of the available literature, the focus is on the conflicts generated within the investment regime, which, as a consequence of its sophisticated system of dispute resolution, is more likely to have to deal with them and better equipped to do so. This interaction can be read on a purely international plane, whereby climate change legal obligations, enshrined in the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and its 1997 Kyoto Protocol (as amended in the 2012 Doha Amendment), conflict with the obligations contained in IIAs. International law possesses several tools, from interpretation to general rules of conflict resolution and specific conflict clauses in the applicable IIAs, to prevent or resolve these conflicts.