bluuebunny/crossref_metadata_2025 huggingface dataset:
Beginnings and Growth of ICSID
Authors: Parra Antonio R
Published: August 2024

This chapter discusses the initiatives undertaken in the late 1950s and early 1960s that led to the creation of the ICSID Convention and ICSID. Rapid decolonization and the emergence of new States with great development needs characterized the late 1950s and early 1960s. Helping them to meet these needs became an important objective in the escalating Cold War conflict between East and West. However, the flow of foreign investment to developing countries was impeded by non-commercial risks. The chapter then looks at the precursor initiatives to solve this problem: the Abs–Shawcross Draft Convention and the Organisation for Economic Co-operation and Development (OECD) Draft Conventions. Proposed by World Bank President Eugene Black and World Bank General Counsel Aron Broches in 1961, the ICSID Convention was finally approved by the executive directors of the World Bank on 18 March 1965. By 14 September 1966, the Convention had been signed and ratified by 20 countries. In accordance with its Article 68(2), the Convention entered into force thirty days later, on 14 October 1966.
Looking Ahead: ICSID and ISDS Reform
Authors: Parra Antonio R
Published: August 2024

This concluding chapter addresses the reform of the ICSID and investor–State dispute settlement (ISDS), which refer to investor-State arbitration initiated pursuant to an investment treaty. For nearly twenty years, the United Nations Conference on Trade and Development (UNCTAD) has been advocating improvements of investment treaties so that they may better serve ‘inclusive growth and sustainable development’. Reforming ISDS to address its ‘legitimacy crisis’ has been a basic aim of this advocacy. As set forth in the 2015 edition of UNCTAD’s World Investment Report, the paths or options for countries to consider in reforming ISDS fall into three main groups: fixing existing ISDS mechanisms, adding new elements to those mechanisms, and completely replacing ISDS. The chapter also considers the reform efforts of the United Nations Commission on International Trade Law (UNCITRAL). It then turns to the advancement of reform at ICSID, by improvements put forward in the last fifteen years and ICSID’s current proposals for changes of its Regulations and Rules.
Introducing Good Faith in International Investment Law
Authors: Sipiorski Emily
Published: August 2024

This chapter discusses the relevance of the principle of good faith in international investment law, first by considering its modes of application. In particular, it shows how good faith is applied or disregarded by tribunals in treaties and agreements. It then explains the role of the principle of good faith in investment arbitration and how it operates in investment law, private international law and public international law. It also examines the relationship of good faith with several other doctrines such as equity, estoppel, abuse of rights and Clean Hands and describes two major applications of the principle of good faith: as a performance obligation and as an interpretative function. Finally, it provides an overview of the book’s methodology and organisation.
Good Faith and Treaty Shopping
Authors: Sipiorski Emily
Published: August 2024

This chapter examines the role of good faith in treaty shopping in investment arbitration, with particular emphasis on the issues of corporate structure, timing in tribunal decisions, and nationality. It first considers how investment tribunals address issues of good faith from the jurisdictional phase of an investment dispute before defining ‘nationality’ in international law and by investment tribunals. It then discusses the concept of treaty shopping in domestic legislation and in international law and goes on to review a number of cases that illustrate how tribunals have dealt with treaty shopping. It also looks at disputes arising from forum selection in good faith in the European Union and concludes with an analysis of whether applying a standard of good faith to allegations of treaty shopping allows tribunals to concretely assess the situation, and whether such application allows investors to adequately plan and anticipate the results of securing the desired jurisdiction.
Preconditions to Arbitration
Authors: Sipiorski Emily
Published: August 2024

This chapter focuses on requirements contained in international investment agreements for parties to use local remedies and to negotiate in good faith. It also examines a paradox in this regard: despite the express requirements to conduct these activities in good faith, tribunals rarely deny jurisdiction based on failure to comply. The chapter first considers the elements that must be met by claimants to create a dispute that is admissible before discussing the general rule regarding exhaustion of local remedies and its application in investment arbitration. It then explores the concept of negotiating in good faith under international law and national laws and explains the pre-submission consultations required between parties that want to bring a dispute to an ICSID tribunal. Finally, it analyses the importance of the language of a contract or a treaty in investment arbitration and the role of silence in good faith negotiation.
Open Source Investigation for Human Rights Reporting
Authors: Koettl Christoph , Murray Daragh , Dubberley Sam
Published: August 2024

This chapter discusses the history of using open source information in human rights reporting. It focuses on the period from the late 1990s to the present, the digital age, in which open source research capability has expanded enormously thanks to the advent of publicly available satellite imagery, digital social networks, camera-enabled smartphones, and globally cheap and fast network connectivity. If in the categorization of Philip Alston, the first generation of human rights fact-finding describes the work of intergovernmental bodies, and the second generation represents the methods developed by international non-governmental organizations such as Amnesty International and Human Rights Watch in the 1970s and 1980s, the chapter covers what Alston calls ‘third-generation fact-finding’, which was largely brought about by significant developments in information and communication technology.
Open Source Evidence and Human Rights Cases
Authors: Koenig Alexa
Published: August 2024

This chapter discusses the history of open source investigations for legal practice. It details an extraordinary shift in the use of social media and other open source information as evidence to address civil cases, especially human rights cases. Whether for criminal or civil cases, lawyers around the world are increasingly using online open sources to generate evidence of human rights abuses. While this practice is still relatively new, the use of online digital content as evidence is poised to explode. Given how much of contemporary communications now happens in digital space — and how important mining those communications can be for building evidentiary records related to atrocities — not knowing how to comb online platforms may (and probably should) soon be considered a form of malpractice.
Prosecuting Atrocity Crimes with Open Source Evidence
Authors: Freeman Lindsay
Published: August 2024

This chapter focuses on the use of open source information in international criminal investigations and prosecutions with a particular emphasis on cases before the International Criminal Court (ICC). By analysing case law which contemplates the admissibility, reliability, and probative value of evidence derived from open sources, the chapter highlights the primary opportunities and challenges that arise when using open source information for legal accountability purposes. The examination of specific ICC cases and judicial decisions over time illustrates the changing nature of the open source information available in war crimes, crimes against humanity, and genocide cases — from analogue newspapers, radio broadcasts, and government reports to social media postings and other digital content from the Internet. Thus, the chapter explores how the attitude of international judges has shifted and evolved with the changing nature of the information environment in the twenty-first century.
Open Source Investigations for Human Rights
Authors: Edwards Scott
Published: August 2024

Human rights investigators are currently inundated by tremendous amounts of data and other information of potential relevance to their work. Just as in commerce, governance, and other areas of public interest, the modern information environment in human rights investigations has forced considerable adaptation in practice, often to the immense benefit of human rights defence. Nevertheless, considerable challenges face the human rights investigator using open source methods. This chapter addresses three broad procedural challenges in open source investigations: the discovery of information; coping effectively with the ephemeral nature of open source content; and assessing information authenticity. It concludes with a discussion of future trends likely to influence the science and practice of open source investigations and the broader pursuit of human rights investigation.
Targeted Mass Archiving of Open Source Information
Authors: Deutch Jeff , Para Niko
Published: August 2024

This chapter introduces various data strategies, concepts, and workflows utilized by Syrian Archive for mass archiving, explaining how to ingest as much potentially relevant digital content as possible, filter that content, and transform it into usable information. The Syrian Archive is a Syrian-led and initiated collective of human rights activists dedicated to preserving, verifying, and investigating open-source documentation related to human rights violations committed by any side since the start of the Syrian conflict in 2011, and to developing innovative open-source tools and methods to assist in these efforts. Since its founding in 2014, Syrian Archive has created an independent, publicly accessible, and interactive archive of verified data developed out of an ingested collection of over 1.5 million data points, over 20 terabytes of video and image data, and half a million additional units of user-generated content (e.g. Tweets, Facebook posts) from more than 3,000 diverse sources. The Syrian Archive uses this data to create publicly accessible datasets and conduct investigations into human rights violations.
How to Verify and Authenticate User-generated Content
Authors: Toler Aric
Published: August 2024

After discovering instances of suspected human rights abuses, the next step in verification is affirming the veracity of user-generated content, namely the content, place, time, and originality of a photograph or video. The process of verification allows researchers to use discovered materials with confidence for either human rights advocacy or as evidence in attempts to bring perpetrators to account. The challenges of verifying a piece of user-generated content can differ in each case, with no single ‘silver bullet’ to solve every problem. Because of this, patience and creativity are just as important as the digital toolset in conducting verification. This chapter goes through a systematic consideration of verification, covering why verification is an essential step in human rights investigations, how to determine the original source of a material, and methods that can be used to ascertain that a photograph or video was captured at the same time and place of the incident under question.
The Role and Use of Satellite Imagery for Human Rights Investigations
Authors: Farfour Micah
Published: August 2024

Remote sensing is the measurement of an object from a distance. While there are many kinds of measurement that could fall under that broad definition, the main interest for human rights research is the measurement of the earth's surface using optical sensors producing a two-dimensional spatial grid referred to as satellite imagery. This chapter discusses the use and analysis of satellite imagery and other remote sensing data for verification and documentation. It considers the history of satellite imagery, some of the various applications, and their importance in human rights investigations. It presents five case studies. It also looks at new things in the industry and where to access remote sensing data.
Open Source Investigations
Authors: Guay Joseph , Rudnick Lisa
Published: August 2024

Open source investigations (OSI) hold tremendous potential for both advancing justice and accountability, and responding to humanitarian protection needs. However, because they often focus on sensitive matters, involve vulnerable people, and operate in a domain that is hyperconnected, rapidly evolving and only (s)lightly regulated, OSI practices can also exacerbate the harm faced by already-vulnerable populations, and introduce new dimensions of risk for investigators and those they serve. This chapter considers how emerging threats and risks can lead to digitally derived harms that OSI practitioners working in the digital space need to be aware of. It highlights two kinds of digital threats that OSI practitioners must take into account: those that are malicious in nature (e.g. surveillance, monitoring, and intrusion, or the weaponization of information); and those that are incidental (e.g. the unintended harms that result from the accidental disclosure of sensitive information or that are associated with data experimentation).
Open Source Investigations for Legal Accountability
Authors: Koenig Alexa , Freeman Lindsay
Published: August 2024

This chapter outlines preliminary reflections on the minimum standards and best practices for conducting open source investigations in anticipation of litigiation. While open sources have long played an important role in information gathering for evidentiary purposes, digital technologies are emerging and changing so rapidly that it is difficult to stay on top of all of the ways that digital open sources can support case development. Formalizing and disseminating open source investigation methods as a means to contribute to the successful adjudication of human rights cases is vital. As more and more communication takes place through digital channels, it will be increasingly important for lawyers and legal investigators to understand the diverse online locations in which relevant information may be found.
A Short History of the Crime of Genocide
Authors: Mettraux Guénaël
Published: August 2024

This chapter embarks on a more detailed history of the crime of genocide and international law. It notes that until World War II genocide was never really addressed by international law. The atrocities perpetuated by the Nazis on such a grand scale, however, necessitated the formation of a new category of law — genocide. Genocide means attacks aimed at the destruction of a group or nation. It is crime directed against a national group and refers to actions and policies aimed at the annihilation of the essential foundations of the life of a group. The chapter shows how, although it was formally recognized as a crime under international law by the General Assembly's Resolution 96(I), for some time genocide remained an unfulfilled crime of paper. Only with the advent of the Yugoslav and Rwanda Tribunals did it gain concrete practical significance. The statutes of both tribunals gave other tribunals jurisdiction over the crime of genocide and replicated, for that purpose, some of the core provisions of the Genocide Convention. With these statutes, the crime of genocide had found judicial homes where the law could thrive and develop.
Jurisdiction to Investigate and Prosecute Acts of Genocide
Authors: Mettraux Guénaël
Published: August 2024

This chapter discusses jurisdiction over acts of genocide. The Genocide Convention provides for three jurisdictional venues of relevance to the enforcement and implementation of its terms. The first two are competent to prosecute and punish acts of genocide attributable to individual perpetrators. According to Article VI, they consist of: the competent jurisdictions of the state in which acts of genocide have been committed (i.e., the territorial state) and an ‘international penal tribunal’. In addition, Article IX of the convention provides that disputes between contracting parties ‘relating to the interpretation, application or fulfilment’ of the convention can be submitted to the International Court of Justice (ICJ) at the request of any of the parties to the dispute. There is also some suggestion that customary international law provides for ‘universal’ jurisdiction over acts of genocide. Under the most extreme version of that proposition, any state would per force be jurisdictionally competent to investigate and prosecute acts of genocide regardless of the place where the crimes were committed and regardless of the nationality of the perpetrators and victims.
EU Securities and Financial Markets Regulation
Authors: Moloney Niamh
Published: August 2024

Over the decade or so since the global financial crisis rocked EU financial markets and led to wide-ranging reforms, EU securities and financial markets regulation has continued to evolve. The legislative framework has been refined and administrative rulemaking has expanded. Alongside, the Capital Markets Union agenda has developed, the UK has left the EU, and ESMA has emerged as a decisive influence on EU financial markets governance. All these developments, as well as the Covid-19 pandemic, have shaped the regulatory landscape and how supervision is organized. This book provides a comprehensive, critical, and contextual account of the intricate rulebook that governs EU financial markets and its supporting institutional arrangements. It is framed by an assessment of how the regime has evolved over the decade or so since the global financial crisis and considers, among other matters, the post-crisis reforms to key legislative measures, the massive expansion of administrative rulemaking and of soft law, the Capital Markets Union agenda, the development of supervisory convergence as the means for organizing pan-EU supervision, and ESMA’s role in EU financial markets governance. This fourth edition is heavily revised to reflect developments since the global financial crisis, it adopts the in-depth contextual and analytical approach of earlier editions and so considers the market, political, institutional, and international context of the regulatory and supervisory regime.
Collective Investment Management
Authors: Moloney Niamh
Published: August 2024

This chapter examines the harmonized EU rules governing collective investment management under the cornerstone UCITS Directive and the Alternative Investment Fund Managers Directive (AIFMD), including the related administrative rules and the supporting supervisory and enforcement arrangements. The chapter considers the evolution and purpose of the regime, including in light of the Capital Markets Union agenda, and how financial stability objectives have come to shape the regime, given the association between collective investment management and non-bank financial intermediation. The chapter then considers the cornerstone UCITS and AIFMD regimes, including in relation to authorization, delegation, asset allocation, liquidity, and disclosure, and the home/host arrangements supporting the ‘regulatory passport’. It also addresses the specialist regimes which apply under the EU Venture Capital Fund (EuVECA), EU Social Entrepreneurship Fund (EuSEF), and European Long-term Investment Fund (ELTIF) Regulations, and under the Money Market Fund Regulation.
Linguistic identity and language rights
Authors: de Varennes Fernand
Published: August 2024

This chapter details the developments of the recognition and protection of language rights and linguistic identity of minorities. It shows how the jurisprudence under traditional human rights is starting to be reassessed in a way that demonstrates that many language rights are protected in traditional human rights provisions. In addition, new regional treaties dealing directly with minority and linguistic protection have been developed, have entered into force, and have started to have significant impact. They provide, in other words, practical guideposts indicating how the path to pluralism can be followed in the area of language policies in democratic societies. The chapter thus reviews the emerging cases, opinions, and views from various courts and other treaty-based bodies which have brought these developments to fruition.
Effective participation of minorities in public life
Authors: Weller Marc
Published: August 2024

This chapter looks at the available instruments for enhancing minority access to political participation. In addition to the right to fully participate in the government of the state overall, this right also includes the opportunity of minorities to make public decisions in relation to issues of special concern to them, or in relation to territorial units principally inhabited by their members. A clear system for the division and transfer of fiscal and economic resources and effective mechanisms for dispute settlement in cases of clashes of competence between the centre and the autonomous entity are also of concern. But while these systems for political participation of minorities are well understood in theory and practice, their anchoring in legal commitments is a different matter. A great deal of judicial precedent on the other forms of political participation is lacking, beyond participation through democratic practices defended through the human rights system.
The World Trade Organization
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter provides an overview of the history and development of the World Trade Organization (WTO). Topics discussed include Bretton Woods and the failure of the International Trade Organization; the emergence of GATT as an international organization; a summary of GATT obligations; the creation of the WTO, its functions and structure, and ongoing work and activities; the principal accomplishments of the GATT/WTO; major challenges confronting the WTO; the Doha Development Agenda; the Bali Package; and the future of the WTO.
WTO Law and Domestic Law
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter discusses the relationship between World Trade Organization (WTO) law and domestic law. It focuses on how the domestic legal orders of three WTO Members — the European Union, Japan, and the United States — implement their WTO obligations into their national legal orders. It shows that the European Union and United States, for very different reasons, have a complex relationship between their domestic legal systems and WTO law. Neither of them recognizes the direct effect of the WTO agreements or final decisions of the WTO Dispute Settlement Body (DSB). Both require the implementation of international WTO norms in their domestic legal orders as a necessary precondition for giving internal validity to their internationally legally binding WTO obligations. Japan provides another example of the difficulty many WTO members face in reconciling their principled position that international treaties take precedence over domestic laws from the day of their enactment or approval with the real world, and states do not want the Appellate Body to limit their foreign economic policy more than it already does. The cases of the United State, Japan, and the EU demonstrate that WTO norms will only be applied by domestic courts after internal implementation and that direct effect of DSB decisions in the domestic legal orders of WTO Members is not recognized.
Dispute Settlement
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter discusses the World Trade Organization (WTO) dispute settlement system. The system is built on the pre-existing GATT regime. It functions very much like a court of international trade: there is compulsory jurisdiction, disputes are settled largely by applying rules of law, decisions are binding on the parties, and sanctions may be imposed if decisions are not observed. Three institutions administer the WTO dispute settlement system: the Dispute Settlement Body (DSB), which establishes panels, adopts panel and Appellate Body Reports, supervises the implementation of recommendations and rulings, and authorizes sanctions for failure to comply with dispute settlement decisions; the Appellate Body is a standing institution composed of seven persons appointed by the DSB for four-year terms; and panels are composed of three (exceptionally five) qualified governmental and/or non-governmental individuals selected from a roster of persons suggested by WTO Members.
Antidumping
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter begins with a discussion of the meaning of the term ‘dumping’. It then discusses the regulation of antidumping duties in the GATT/WTO regime and criminal penalties and private remedies. It concludes with proposed amendments to the Antidumping Agreement to incorporate concepts developed in competition law.
Export Measures and Controls
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter addresses the rules of international law governing export control measures. It first considers five important cases that have been decided under the GATT/WTO dispute settlement mechanism. It then discusses WTO rules on export measures, export tariffs, natural resources, agricultural commodities, security exceptions. It also briefly describes the treatment of export restrictions in bilateral and multilateral preferential trade agreements (PTAs).
Argentina v. Chile (Award of the Arbitral Tribunal, 18 February 1977)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter first outlines the history of the Argentina/Chile case, and explains the importance of the Beagle Channel. The dispute concerned the question of sovereignty over the regions Picton, Nueva, and Lennox, together with a number of islets and other small features on the eastern side of the Channel, and the location of the corresponding maritime boundary between the parties in the case. The chapter explains the parties’ positions and presents a summary of the decision. It ends with an analysis on the significance of the decision in this case and its contribution to international law. The decision is significant in the context of territorial sea delimitation, it argues. The chapter analyzes the ‘principle of appurtenance’ as it applies in the territorial sea (which is closely related to the tenet that ‘the land dominates the sea’, articulated by the ICJ in the North Sea Continental Shelf cases). The case provides a leading example of the variance of a geometric equidistance or median line in order to accommodate navigational interests in the territorial sea.
Dubai-Sharjah Border Arbitration (Award of the ad hoc ‘Court of Arbitration’, 19 October 1981)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter introduces a case which arose out of a dispute over the land and maritime boundary between the Emirate of Dubai and the Emirate of Sharjah in the United Arab Emirates (UAE). The chapter starts by explaining the history of the area and the boundaries in question here. This arbitration, the chapter argues, represents a leading example of the application of international law to the delimitation of maritime boundaries between the internal units of a federated State. The Award was rendered on the cusp of the signature of UN Convention on the Law of the Sea (UNCLOS) and provides a useful indication of the state of customary international law at that time as regards the delimitation of territorial sea and continental shelf boundaries.
Guinea v. Guinea-Bissau (Award of the Arbitral Tribunal, 14 February 1985)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case outlined in this chapter concerned the delimitation of the maritime boundary between Guinea and Guinea-Bissau in the Atlantic Ocean. These countries are adjacent States situated on the West African coast, between Senegal (to the north) and Sierra Leone (to the south). The dispute here dates back to 1958. The chapter finishes with some thoughts on the importance of this case for international law. The case is one of the first examples in modern international law of a maritime boundary dispute being settled by way of ad hoc arbitration and a rare modern example of a maritime boundary dispute being settled by a panel of three (as opposed to five) arbitrators. The Award is notable for its breadth and flexibility as to the methodology to be adopted in single maritime boundary delimitation and the scope of relevant factors. The Award is, this chapter states, perhaps best known for its close attention to the regional context of the delimitation.
Eritrea v. Yemen (Award of the Arbitral Tribunal in the Second Stage of the Proceedings, Phase II: Maritime Delimitation, 17 December 1999)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter concerns a case over a combined island sovereignty and maritime boundary dispute in the Red Sea between Eritrea and Yemen. The sovereignty dispute principally concerned the Mohabbakah Islands, the Haycock Islands, the Zuqar-Hanish Islands, the island of Jabal al-Tayr, and the Zubayr island group. The dispute dates back to the decline of the Ottoman Empire leading up to the First World War and colonial activities in the region by Italy and Great Britain during the late nineteenth and early twentieth centuries. The Phase II Award in the case confirms the generally accepted view in modern international law and State practice that the median or equidistance line provides an appropriate starting point for any maritime boundary delimitation between opposite coasts. Only in the most exceptional of circumstances will international law reject such an equidistance-based approach as a starting point in opposite coast delimitation.
Cameroon v. Nigeria: Equatorial Guinea intervening (Judgment of the International Court of Justice, 10 October 2002)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case described in this chapter is about the delimitation of the land and maritime boundary between Cameroon and Nigeria. This land boundary dispute extended from Lake Chad in the north to the Bakassi Peninsula in the south and the parties have adjacent coastlines abutting the Gulf of Guinea. The maritime areas in dispute along the eastern flank of the Niger Delta were highly prospective for oil and gas and there had been extensive oil activity on both the Nigerian and Cameroonian sides. However, overlapping oil concession blocks in the disputed area had restricted exploration and production. This is an example of a case, the chapter concludes, that concerned complex disputes over both land territory and maritime boundaries. This contrast illustrates the relative expediency with which arbitration proceedings can be conducted in such disputes as compared with proceedings before the court, particularly when both parties desire a rapid resolution.
Guyana v. Suriname (Award of the Arbitral Tribunal, 17 September 2007)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The chapter starts by introducing some background to this case. Guyana and Suriname are located on the north-eastern coast of South America, facing the Atlantic Ocean. Their coastlines are adjacent, separated by the Corentyne River, the west bank of which forms the land boundary between the two countries =. Efforts to establish a border between the states pre-dated their independence. The chapter presents some analysis on the case, which was the second maritime delimitation arbitral proceeding under Part XV of UNCLOS. In its delimitation of the territorial sea boundary, the award confirms the ‘primacy’ of equidistance-based delimitation. The tribunal observed that Suriname could have invoked compulsory dispute resolution under Part XV of UNCLOS and sought provisional measures to put an end to Guyana’s drilling activities in the disputed area. The tribunal thereby provided guidance to any coastal state faced with unilateral drilling by a neighbour in a disputed area.
Peru v. Chile (Judgment of the International Court of Justice, 27 January 2014)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter looks in detail at a case which dealt with a dispute between Peru and Chile in relation to the course of their maritime boundary in the South Pacific Ocean. The coastlines of Peru and Chile are adjacent. Peru argued that no prior agreed maritime boundary existed between the two countries and, in its Application, requested the court to plot a boundary line using the equidistance method in order to achieve an equitable result. After describing the case, the chapter looks at the significance of it for international law. This is the first decision by the International Court of Justice (ICJ) recognizing the existence of a maritime boundary established by ‘compelling’ evidence of a tacit agreement between the coastal States.
Bangladesh v. India (Award of the Arbitral Tribunal, 7 July 2014)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case described in this chapter concerned a dispute between Bangladesh and India over the location of the land boundary terminus and delimitation of the maritime boundary between them in the Bay of Bengal. The parties’ coastlines in the area where their land boundary meets the Bay of Bengal are highly indented and unstable, with several major river channels flowing into the sea. The UNCLOS Tribunal’s Award complements the judgment of ITLOS rendered just over two years beforehand in the Bangladesh/Myanmar case. A notable procedural aspect of the Bangladesh/India case was the tribunal’s decision to conduct a five-day site visit to the delimitation area, including a viewing of all the base points proposed by the parties. The tribunal’s conclusions, the chapter further argues, about the irrelevance of coastal instability, climate change, and sea-level rise for the purposes of identifying the appropriate delimitation methodologies, base points, and relevant circumstances are also notable.
The Inconsistent Approach of Courts and Tribunals in the Adjustment of Provisional Equidistance Lines to Accommodate Geographical Relevant Circumstances
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This book has argued that the standard (three-stage) methodology for the delimitation of maritime boundaries under the modern law is now well established and employed in the majority of third-party dispute resolution situations. However, this chapter looks at the uncertainty that still exists around the application of that methodology in the specific circumstances of any particular case. The source of uncertainty examined here relates to the adjustment of a provisional equidistance or median line at the second stage of the process, once it has been determined that some adjustment is required for one or more geographical relevant circumstances. The approaches taken by courts and tribunals to the question of how to effect any adjustment have differed significantly, sometimes even in geographical situations that appear quite similar. This has given rise to perceptions of inconsistency from one case to the next. This section looks at the reasons why this might be so.
Delimitation of the Outer Continental Shelf: Questions of Delineation and Methodology
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This final section considers two challenges that arise in connection with the delimitation of continental shelf claims beyond 200M. The first asks: how can the relationship between delimitation of outer shelf entitlements under Article 83 of UNCLOS and delineation of outer limits by the CLCS under Article 76 of UNCLOS be managed so as to reduce the risk of a deadlock situation where neither process can proceed pending completion of the other? The second challenge asks: do geological and geomorphological factors have any role to play in the delimitation of overlapping shelf entitlement beyond 200M and, if so, what is that role? This chapter looks at these two challenges in detail.
Climate Governance beyond the United Nations Climate Regime
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter examines the four central features of climate change governance outside of the FCCC. First, it is multi-level: it operates through institutions at different geographic scales, ranging from global to regional to national to sub-national. Second, it is multi-actor, involving both public and private institutions, including states, sub-national governments, international organizations, environmental and other civil society organizations, and business. Third, it involves different degrees of legalization, from ‘hard law’ rules set forth in treaties such as the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) and the Montreal Protocol on Substances that Deplete the Ozone Layer, to ‘soft law’ norms such as the ‘gold standard’ for carbon credits or the ‘carbonneutral protocol’. Finally, it is polycentric, in that there is no central, organizing authority.
The Framework of International Criminal Procedure
Authors: Ambos Kai
Published: August 2024

This introductory chapter is an overview of international criminal procedure. More specifically, it discusses the conceptual foundations of international criminal procedure, and clarifies the dichotomy between the inquisitorial ‘civil law’ and the adversarial ‘common law’ process. The chapter next traces the history of international criminal procedure, focusing in particular on the emerging international criminal procedure and the relevant courts and tribunals which provide better understanding into modern developments. The goals of international criminal justice—under which category the international criminal procedures fall—are then outlined. Finally, the chapter delves into the rights of the accused—the rights enjoyed by the defendants in international criminal proceedings—which are generally recognized in universal and regional human rights instruments.
Proceedings before the ICC and the Ad Hoc Tribunals—Overview of and Special Issues
Authors: Ambos Kai
Published: August 2024

This chapter discusses the three phases of international criminal procedure—the investigation phase, the intermediate proceedings, and the trial—and the special issues surrounding these. The investigation phase consists of all activities undertaken by the Prosecutor for the collection of information and evidence. It may be further subdivided into a pre-investigation (preliminary examination) and a formal (actual) investigation phase. The intermediate proceedings then serve to review the charges as the actual result of the prosecutorial investigation. Finally, the trial phase may be further subdivided into three phases: the (normally quite extensive) trial preparation phase, the actual trial with the verdict (‘decision’) upon the guilt or innocence of the accused, and the phase meting out the sentence (‘sentencing’). Procedures of the International Criminal Court (ICC) are compared to those of the ad hoc tribunals.
International Migration Law
Authors: Chetail Vincent
Published: August 2024

This textbook provides a detailed and comprehensive overview of the international legal framework applicable to the movement of persons across borders. The role of international law in this field is complex, and often ambiguous: there is no single source for the international law governing migration. The current framework is scattered throughout a wide array of rules belonging to numerous fields of international law, including refugee law, human rights law, humanitarian law, labour law, trade law, maritime law, criminal law, and consular law. This textbook cuts through this complexity by clearly demonstrating what the current international law is, and assessing how it operates. The book offers a unique and comprehensive overview of this growing field of international migration law. It brings together and critically analyses the disparate norms of treaty law, customary law, and soft law on a broad variety of issues, such as irregular migration, human trafficking, refugee protection, labour migration, non-discrimination, regional free movement schemes, and global migration governance. It also offers a particular focus on specific groups of migrants, namely migrant workers, refugees, smuggled migrants, and victims of human trafficking. It maps the current status of the law governing their movement, providing a thorough critical analysis of the various strands of international law which apply to them, suggesting how the law may continue to develop in the future.
Introduction
Authors: Chetail Vincent
Published: August 2024

This introductory chapter provides an overview of the issue of migration. It first considers data and statistics to inform and objectivize the debate, and attempts to dispel the complexity of international law and migration. It then sets out the textbook’s purpose, namely to clarify the role of international law in migration by providing a comprehensive and accessible overview of the main applicable legal norms. The textbook is structured into three parts addressing respectively: (i) the origins and foundations of international migration law; (ii) the specialized treaty regimes governing the movement of persons across borders; and (iii) the role of soft law in global migration governance. Each part sheds light on one particular facet of a much broader field.
Founding Principles of International Migration Law
Authors: Chetail Vincent
Published: August 2024

This chapter focuses on the foundational principles of international migration law that are grounded on a dense and superimposed network of customary and conventional rules. While providing the general normative framework, this chapter unveils the internal logic of international migration law by governing the three constitutive components of the migration process: departure, admission, and stay of migrants. Topics covered include the right to leave any country in customary international law; admission of migrants under customary international law (including the principle of non-refoulement); the right to free movement of persons under regional agreements; immigration control and procedural guarantees under customary international law (such as the prohibition of arbitrary detention and of collective expulsion); the sojourn of migrants; and the impact of the principle of non-discrimination on the human rights of migrants.
Refugees
Authors: Chetail Vincent
Published: August 2024

The general principles of international migration law are supplemented and detailed by more specialized treaty regimes. This chapter focuses on the conventions adopted under the auspices of the United Nations (UN) that deal specifically with refugees. The universal treaty regime of refugee protection is primarily governed by two specific instruments: the UN Convention Relating to the Status of Refugees of 28 July 1951 and its 1967 Protocol. Currently ratified by 147 states across the world, they establish a sophisticated body of international rules based on three parameters: (i) the refugee definition, (ii) the refugee status, and (iii) the principle of non-refoulement. Each of them unveils a subtle balancing act between the competence of the state to control access to its territory and the protection of the victims of human rights’ violations.
Migrant Workers
Authors: Chetail Vincent
Published: August 2024

This chapter analyses the conventions adopted under the auspices of the United Nations (UN) that deal specifically with migrant workers. Migrant workers are governed by three specialized treaties at the universal level. Two of them have been concluded under the auspices of the International Labour Organization (ILO) in 1949 and 1975, whereas the most recent and comprehensive one, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), was adopted within the UN in 1990. Although each of them has been conceived as a distinct treaty, their respective content provides a complementary and mutually reinforcing legal framework. When taken together, the two ILO Conventions and the ICRMW can be viewed as establishing an international charter of migrant workers that lays down a comprehensive normative framework on a broad variety of issues, including, most notably, the definition and rights of migrant workers as well as inter-state cooperation on labour migration.
Trafficked and Smuggled Migrants
Authors: Chetail Vincent
Published: August 2024

This chapter focuses on the conventions adopted under the auspices of the United Nations (UN) that deal specifically with trafficked or smuggled migrants. In 2000, new legal classifications of migrants emerged with the adoption of the UN Protocol against the Smuggling of Migrants by Land, Sea and Air, and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime. Entered into force in 2004 and 2003 respectively, these two Protocols follow an entirely different pattern compared to the other specialized treaties of international migration law adopted so far. They have been conceived as an instrument of criminal law to supplement the UN Convention against Transnational Organized Crime, in stark contrast with the logic of protection that prevails under the other specialist treaties devoted to refugees and migrant workers.
The Functions and Evolution of Soft Law in Global Migration Governance
Authors: Chetail Vincent
Published: August 2024

This chapter assesses the function and the evolution of soft law in international migration law. It starts by investigating the main functions of soft law in international migration law. The relations between hard law and soft law are not always mutually exclusive; they are frequently intermingled in an incremental process of consolidation and cross-fertilization. The chapter then traces the long evolution of global migration governance that has been shaped and developed by soft law. Although its influence is not free from ambiguities, the unprecedented expansion of soft law has been decisive in building confidence and creating a routine of intergovernmental dialogue. By doing so, it has forged a common language and a growing consensus among states that unveil the role of multilateralism as a counter-narrative to populism and unilateralism.
Concluding Thoughts on the Future of International Migration Law
Authors: Chetail Vincent
Published: August 2024

This concluding chapter summarizes key themes and presents some final thoughts. The normative and institutional framework governing migration has grown and evolved over the last century to embody a detailed set of international rules and institutions. Despite its obvious limits, soft law has been an influential vehicle to foster intergovernmental dialogue and confidence building on a traditionally contentious issue alongside the North–South divide. The UN and its Member States are now embarking upon a vast reform which constitutes a new turning point for multilateralism. The challenges are numerous and require more than ever a global and rational vision. At the institutional level, the overall UN framework is arguably bound to remain multilevel and cross-cutting, reflecting the multidimensional nature of migration. At the normative level, the most important challenge of international migration law relates to its domestic application by states.