Alberto Pecoraro | Universiteit Antwerpen (original) (raw)

Papers by Alberto Pecoraro

The international seabed’s designation as common heritage of mankind raises numerous fascinating ... more The international seabed’s designation as common heritage of mankind raises numerous fascinating legal issues. One crucial question is how to strike the correct balance between the protection of the private rights held by deep seabed mining operators and the achievement of the collective goals embodied in the CHM principle. Both imperatives are explicitly protected by UNCLOS and by general international law: they are to guide the regulatory action of the Authority and of sponsoring states. Nevertheless, it is very likely that, once the current phase of resource exploration will transition toward exploitation activities, there will be disputes between contractors and the Authority in respect of the latter’s decisions, actions, or inactions. Similar disputes may very well arise between contractors and their sponsoring states. For instance, sponsoring states may balk at continuing their sponsorship once a deep seabed mining operator decides to move onto exploitation activities. Alternatively, once exploitation activities prove to be successful, a sponsoring state may alter the legal framework to reap more sizeable benefits. Arguably, the high financial stakes inherent in deep seabed mining projects, the considerable environmental risks that are prospected, and the fact that the applicable legal regime is still incomplete, are elements which heighten the risk of such disputes.

Ocean Development & International Law, 2022

The International Seabed Authority is the global international organization through which 167 mem... more The International Seabed Authority is the global international organization through which 167 member states organize and control deep seabed mining in the international seabed. In addition to allocating mining rights, the Authority elaborates, amends, and enforces rules applicable to extractive activities in the Area. However, its freedom of action vis-à-vis deep seabed mining operators is constrained by the 1982 UN Convention on the Law of the Sea (UNCLOS):contractors enjoy security of tenure, and the Authority is bound to respect obligations of nondiscrimination, proportionality, and uniform treatment. Nevertheless, those safeguards must be interpreted and applied considering the Area’s specific legal status.

SSRN Electronic Journal, 2019

Two essential features of the UN Convention on the Law of the Sea are the designation of the Area... more Two essential features of the UN Convention on the Law of the Sea are the designation of the Area as Common Heritage of Mankind and the creation of the International Seabed Authority to allocate mining rights therein. Only private persons sponsored by their state of nationality may conclude a contract with the Authority and conduct extractive activities in the Area. Currently there exist twenty-nine contracts for the exploration of minerals in the Area: various contractors are corporations owned by nationals from states other than their sponsor. UNCLOS and its related instruments impose certain direct obligations on sponsoring state and a duty of due diligence to ensure that deep sea miners respect their own obligations. This may require the frequent adaptation of national legislation to attain, for example, higher levels of environmental protection. This article suggests that international investment law is relevant to the relation between the contractor and its sponsoring state. Arguably the foreign shareholders of the contractors are investors protected by international investment law, and deep sea mining activities may constitute in certain circumstances an investment in the territory of the sponsoring state. Investment tribunals have interpreted flexibly the investment treaty requirement of territoriality, upholding their jurisdiction over investments inclusive of transactions located beyond host state borders. This situation might complicate the regulation of deep sea mining by the sponsoring state. However, the principle of Common Heritage of Mankind may play a role in the interpretation and application of investment law standards vis à vis the sponsoring state.

SSRN Electronic Journal, 2015

An umbrella clause is a provision through which the parties to an investment treaty undertake to ... more An umbrella clause is a provision through which the parties to an investment treaty undertake to observe any obligation they enter into with investors from the other state parties. Such a clause is included in numerous investment treaties, including the Energy Charter Treaty. Because of its imprecise language, this provision is potentially susceptible of indefinite expansion. In other words, it is difficult to determine to which obligations the clause applies and to which it does not. This brings us to two important questions. The first question is whether an umbrella clause may elevate a simple breach of national law to a breach of treaty under international law. The second questions is whether the umbrella clause's scope is limited to contractual commitments, or whether it also covers unilateral engagements made by states through legislative or regulatory acts. It is submitted here that, based on the clause's plain wording, its context, and the scarce existing case-law, the umbrella clause covers any commitment taken specifically with an investor. It would seem that legislative and regulatory acts might qualify as commitments taken specifically with an investor if a certain nexus is established between those acts and the individual investor.

Encyclopedia of Law and Development, 2021

SSRN Electronic Journal, 2020

Foreign capital has increasingly become involved in the exploration for deep sea minerals in the ... more Foreign capital has increasingly become involved in the exploration for deep sea minerals in the Area. Foreign-owned companies have received the sponsorship of their state of incorporation, as required by UNCLOS to be granted an exploration contract by the International Seabed Authority. Sponsoring states’ policies toward such foreign-owned entities may go further than the mere implementation of UNCLOS obligations by pursuing national objectives such as better environmental protection or greater financial benefits for the local population. However, international law confers certain protections to foreign investment by binding states to respect an international minimum standard of treatment. Various UNCLOS provisions incorporate those guarantees, which could consequently be litigated through the dispute settlement system in Part XI of the convention. Yet, only the contractors’ state of nationality and the Authority have, under the convention, the required standing to do so.

LSN: Treaties (Topic), 2018

In international law, all tribunals, whether arbitral or judicial, are of attributed jurisdiction... more In international law, all tribunals, whether arbitral or judicial, are of attributed jurisdiction. The attribution of this jurisdiction is based on state consent and is limited by the terms thereof. Yet, the rigours of state consent to investment dispute settlement have been eroded through the broad interpretation of most-favoured nation clauses (or MFN clauses) by investment tribunals. The question addressed by the present article is whether an investment treaty’s MFN clause may be used to alter the terms of state consent to international arbitration by incorporating a more favourable dispute settlement clause contained in a third treaty. Its conclusion is that, where an MFN clause merely refers to “treatment” and “all matters”, an investor cannot rely thereon in order to avoid the conditions attached by a state to its standing offer to arbitrate. In any way, MFN clauses encompass treatment accorded within a contracting party’s territory, and international arbitration lies by defin...

Asian Journal of International Law

Access to and from the sea for landlocked states has been a long-standing issue in the law of the... more Access to and from the sea for landlocked states has been a long-standing issue in the law of the sea. Such issue is also addressed by the Convention on the Legal Status of the Caspian Sea (or Aktau Convention), which foresees a right of free access to other seas for landlocked State Parties—Azerbaijan, Kazakhstan, and Turkmenistan—through the Russian Federation. At the same time, it upholds the transit state's sovereignty and right to protect its legitimate interests. Consequently, it is important to assess the limits of the transit state's discretion pursuant to the Aktau Convention. In this regard, that instrument has important linkages with UNCLOS and with general international law. These linkages introduce in the Aktau Convention various norms—such as due regard and reasonableness—that play an important role in its interpretation.

Melbourne Journal of International Law (forthcoming), 2020

An essential feature of the UN Convention on the Law of the Sea is the designation of the seabed ... more An essential feature of the UN Convention on the Law of the Sea is the designation of the seabed beyond national jurisdiction (or the Area) as Common Heritage of Mankind, with the creation of the International Seabed Authority to allocate mining rights therein. The only private persons that may conclude a contract with the Authority and conduct extractive activities in the Area are those which are sponsored by their state of nationality or control. Currently, among those contractors, there are various corporations owned by nationals from states other than their sponsor. UNCLOS and its related instruments impose certain direct obligations on sponsoring state including a duty of due diligence to ensure that deep sea miners respect their own obligations owed to the Authority. This may require the frequent adaptation of national legislation to attain, for example, higher levels of environmental protection. This article suggests that international investment law is relevant to the relation between the contractor and its sponsoring state. Arguably the contractors’ foreign shareholders are investors protected by international investment law, and deep sea mining activities may constitute in certain circumstances an investment in the territory of the sponsoring state. In fact, investment tribunals have interpreted flexibly the investment treaty requirement of territoriality, upholding their jurisdiction over investments inclusive of transactions located beyond host state borders. However, it is unclear how international norms protecting investments might be interpreted and applied in the peculiar context provided by the Common Heritage of Mankind.

Bulletin of the Institute of Legislation of the Republic of Kazakhstan, 2018

An umbrella clause is a provision through which the parties to an investment treaty undertake to ... more An umbrella clause is a provision through which the parties to an investment treaty undertake to observe any obligation they enter into with investors from the other state parties. Such a clause is included in numerous investment treaties, including the Energy Charter Treaty. Because of its imprecise language, this provision is potentially susceptible of indefinite expansion. In other words, it is difficult to determine to which obligations the clause applies and to which it does not. This brings us to two important questions. The first question is whether an umbrella clause may elevate a simple breach of national law to a breach of treaty under international law. The second questions is whether the umbrella clause's scope is limited to contractual commitments, or whether it also covers unilateral engagements made by states through legislative or regulatory acts. It is submitted here that, based on the clause's plain wording, its context, and the scarce existing case-law, the umbrella clause covers any commitment taken specifically with an investor. It would seem that legislative and regulatory acts might qualify as commitments taken specifically with an investor if a certain nexus is established between those acts and the individual investor.

Drafts by Alberto Pecoraro

Public International Law: Kazakh Perspectives , 2025

The 2018 Convention on the Legal Status of the Caspian Sea constitutes an important instrument, w... more The 2018 Convention on the Legal Status of the Caspian Sea constitutes an important instrument, which allocates state rights over that "body of water" and systematizes the law applicable to it. However, there remains several gaps and ambiguities concerning its individual disciplines. A good example are the vague and sometimes ccontraddictory provisions on the protection of the Caspian environmnent.

Foreign capital has increasingly become involved in the exploration for deep sea minerals in the ... more Foreign capital has increasingly become involved in the exploration for deep sea minerals in the Area. Foreign-owned companies have received the sponsorship of their state of incorporation, as required by UNCLOS, in order to be granted a contract by the International Seabed Authority. Sponsoring states’ policies toward such foreign-owned entities may go further than the mere implementation of UNCLOS obligations by pursuing national objectives such as better environmental protection or greater financial benefits for the local population. However, international law confers certain protections to foreign investment by binding states to respect an international minimum standard of treatment. Various UNCLOS provisions incorporate those guarantees, which could consequently be litigated through the dispute settlement system in Part XI of the convention.Yet, only the contractors’ state of nationality and the Authority have the required standing to do sounder the convention.

The international seabed’s designation as common heritage of mankind raises numerous fascinating ... more The international seabed’s designation as common heritage of mankind raises numerous fascinating legal issues. One crucial question is how to strike the correct balance between the protection of the private rights held by deep seabed mining operators and the achievement of the collective goals embodied in the CHM principle. Both imperatives are explicitly protected by UNCLOS and by general international law: they are to guide the regulatory action of the Authority and of sponsoring states. Nevertheless, it is very likely that, once the current phase of resource exploration will transition toward exploitation activities, there will be disputes between contractors and the Authority in respect of the latter’s decisions, actions, or inactions. Similar disputes may very well arise between contractors and their sponsoring states. For instance, sponsoring states may balk at continuing their sponsorship once a deep seabed mining operator decides to move onto exploitation activities. Alternatively, once exploitation activities prove to be successful, a sponsoring state may alter the legal framework to reap more sizeable benefits. Arguably, the high financial stakes inherent in deep seabed mining projects, the considerable environmental risks that are prospected, and the fact that the applicable legal regime is still incomplete, are elements which heighten the risk of such disputes.

Ocean Development & International Law, 2022

The International Seabed Authority is the global international organization through which 167 mem... more The International Seabed Authority is the global international organization through which 167 member states organize and control deep seabed mining in the international seabed. In addition to allocating mining rights, the Authority elaborates, amends, and enforces rules applicable to extractive activities in the Area. However, its freedom of action vis-à-vis deep seabed mining operators is constrained by the 1982 UN Convention on the Law of the Sea (UNCLOS):contractors enjoy security of tenure, and the Authority is bound to respect obligations of nondiscrimination, proportionality, and uniform treatment. Nevertheless, those safeguards must be interpreted and applied considering the Area’s specific legal status.

SSRN Electronic Journal, 2019

Two essential features of the UN Convention on the Law of the Sea are the designation of the Area... more Two essential features of the UN Convention on the Law of the Sea are the designation of the Area as Common Heritage of Mankind and the creation of the International Seabed Authority to allocate mining rights therein. Only private persons sponsored by their state of nationality may conclude a contract with the Authority and conduct extractive activities in the Area. Currently there exist twenty-nine contracts for the exploration of minerals in the Area: various contractors are corporations owned by nationals from states other than their sponsor. UNCLOS and its related instruments impose certain direct obligations on sponsoring state and a duty of due diligence to ensure that deep sea miners respect their own obligations. This may require the frequent adaptation of national legislation to attain, for example, higher levels of environmental protection. This article suggests that international investment law is relevant to the relation between the contractor and its sponsoring state. Arguably the foreign shareholders of the contractors are investors protected by international investment law, and deep sea mining activities may constitute in certain circumstances an investment in the territory of the sponsoring state. Investment tribunals have interpreted flexibly the investment treaty requirement of territoriality, upholding their jurisdiction over investments inclusive of transactions located beyond host state borders. This situation might complicate the regulation of deep sea mining by the sponsoring state. However, the principle of Common Heritage of Mankind may play a role in the interpretation and application of investment law standards vis à vis the sponsoring state.

SSRN Electronic Journal, 2015

An umbrella clause is a provision through which the parties to an investment treaty undertake to ... more An umbrella clause is a provision through which the parties to an investment treaty undertake to observe any obligation they enter into with investors from the other state parties. Such a clause is included in numerous investment treaties, including the Energy Charter Treaty. Because of its imprecise language, this provision is potentially susceptible of indefinite expansion. In other words, it is difficult to determine to which obligations the clause applies and to which it does not. This brings us to two important questions. The first question is whether an umbrella clause may elevate a simple breach of national law to a breach of treaty under international law. The second questions is whether the umbrella clause's scope is limited to contractual commitments, or whether it also covers unilateral engagements made by states through legislative or regulatory acts. It is submitted here that, based on the clause's plain wording, its context, and the scarce existing case-law, the umbrella clause covers any commitment taken specifically with an investor. It would seem that legislative and regulatory acts might qualify as commitments taken specifically with an investor if a certain nexus is established between those acts and the individual investor.

Encyclopedia of Law and Development, 2021

SSRN Electronic Journal, 2020

Foreign capital has increasingly become involved in the exploration for deep sea minerals in the ... more Foreign capital has increasingly become involved in the exploration for deep sea minerals in the Area. Foreign-owned companies have received the sponsorship of their state of incorporation, as required by UNCLOS to be granted an exploration contract by the International Seabed Authority. Sponsoring states’ policies toward such foreign-owned entities may go further than the mere implementation of UNCLOS obligations by pursuing national objectives such as better environmental protection or greater financial benefits for the local population. However, international law confers certain protections to foreign investment by binding states to respect an international minimum standard of treatment. Various UNCLOS provisions incorporate those guarantees, which could consequently be litigated through the dispute settlement system in Part XI of the convention. Yet, only the contractors’ state of nationality and the Authority have, under the convention, the required standing to do so.

LSN: Treaties (Topic), 2018

In international law, all tribunals, whether arbitral or judicial, are of attributed jurisdiction... more In international law, all tribunals, whether arbitral or judicial, are of attributed jurisdiction. The attribution of this jurisdiction is based on state consent and is limited by the terms thereof. Yet, the rigours of state consent to investment dispute settlement have been eroded through the broad interpretation of most-favoured nation clauses (or MFN clauses) by investment tribunals. The question addressed by the present article is whether an investment treaty’s MFN clause may be used to alter the terms of state consent to international arbitration by incorporating a more favourable dispute settlement clause contained in a third treaty. Its conclusion is that, where an MFN clause merely refers to “treatment” and “all matters”, an investor cannot rely thereon in order to avoid the conditions attached by a state to its standing offer to arbitrate. In any way, MFN clauses encompass treatment accorded within a contracting party’s territory, and international arbitration lies by defin...

Asian Journal of International Law

Access to and from the sea for landlocked states has been a long-standing issue in the law of the... more Access to and from the sea for landlocked states has been a long-standing issue in the law of the sea. Such issue is also addressed by the Convention on the Legal Status of the Caspian Sea (or Aktau Convention), which foresees a right of free access to other seas for landlocked State Parties—Azerbaijan, Kazakhstan, and Turkmenistan—through the Russian Federation. At the same time, it upholds the transit state's sovereignty and right to protect its legitimate interests. Consequently, it is important to assess the limits of the transit state's discretion pursuant to the Aktau Convention. In this regard, that instrument has important linkages with UNCLOS and with general international law. These linkages introduce in the Aktau Convention various norms—such as due regard and reasonableness—that play an important role in its interpretation.

Melbourne Journal of International Law (forthcoming), 2020

An essential feature of the UN Convention on the Law of the Sea is the designation of the seabed ... more An essential feature of the UN Convention on the Law of the Sea is the designation of the seabed beyond national jurisdiction (or the Area) as Common Heritage of Mankind, with the creation of the International Seabed Authority to allocate mining rights therein. The only private persons that may conclude a contract with the Authority and conduct extractive activities in the Area are those which are sponsored by their state of nationality or control. Currently, among those contractors, there are various corporations owned by nationals from states other than their sponsor. UNCLOS and its related instruments impose certain direct obligations on sponsoring state including a duty of due diligence to ensure that deep sea miners respect their own obligations owed to the Authority. This may require the frequent adaptation of national legislation to attain, for example, higher levels of environmental protection. This article suggests that international investment law is relevant to the relation between the contractor and its sponsoring state. Arguably the contractors’ foreign shareholders are investors protected by international investment law, and deep sea mining activities may constitute in certain circumstances an investment in the territory of the sponsoring state. In fact, investment tribunals have interpreted flexibly the investment treaty requirement of territoriality, upholding their jurisdiction over investments inclusive of transactions located beyond host state borders. However, it is unclear how international norms protecting investments might be interpreted and applied in the peculiar context provided by the Common Heritage of Mankind.

Bulletin of the Institute of Legislation of the Republic of Kazakhstan, 2018

An umbrella clause is a provision through which the parties to an investment treaty undertake to ... more An umbrella clause is a provision through which the parties to an investment treaty undertake to observe any obligation they enter into with investors from the other state parties. Such a clause is included in numerous investment treaties, including the Energy Charter Treaty. Because of its imprecise language, this provision is potentially susceptible of indefinite expansion. In other words, it is difficult to determine to which obligations the clause applies and to which it does not. This brings us to two important questions. The first question is whether an umbrella clause may elevate a simple breach of national law to a breach of treaty under international law. The second questions is whether the umbrella clause's scope is limited to contractual commitments, or whether it also covers unilateral engagements made by states through legislative or regulatory acts. It is submitted here that, based on the clause's plain wording, its context, and the scarce existing case-law, the umbrella clause covers any commitment taken specifically with an investor. It would seem that legislative and regulatory acts might qualify as commitments taken specifically with an investor if a certain nexus is established between those acts and the individual investor.

Public International Law: Kazakh Perspectives , 2025

The 2018 Convention on the Legal Status of the Caspian Sea constitutes an important instrument, w... more The 2018 Convention on the Legal Status of the Caspian Sea constitutes an important instrument, which allocates state rights over that "body of water" and systematizes the law applicable to it. However, there remains several gaps and ambiguities concerning its individual disciplines. A good example are the vague and sometimes ccontraddictory provisions on the protection of the Caspian environmnent.

Foreign capital has increasingly become involved in the exploration for deep sea minerals in the ... more Foreign capital has increasingly become involved in the exploration for deep sea minerals in the Area. Foreign-owned companies have received the sponsorship of their state of incorporation, as required by UNCLOS, in order to be granted a contract by the International Seabed Authority. Sponsoring states’ policies toward such foreign-owned entities may go further than the mere implementation of UNCLOS obligations by pursuing national objectives such as better environmental protection or greater financial benefits for the local population. However, international law confers certain protections to foreign investment by binding states to respect an international minimum standard of treatment. Various UNCLOS provisions incorporate those guarantees, which could consequently be litigated through the dispute settlement system in Part XI of the convention.Yet, only the contractors’ state of nationality and the Authority have the required standing to do sounder the convention.