bluuebunny/crossref_metadata_2025 huggingface dataset:
Conclusion: Looking Forward on the Trade in Cultural Objects
Authors: Ana Filipa Vrdoljak
Published: June 2024

This concluding chapter discusses the future possibility concerning the trade in cultural objects. It explores the informing and defining multilateral efforts for protecting cultural objects by considering societal context, public international law context, and international cultural heritage law. The definition of cultural objects lies in the duality in international cultural heritage law captured in the language of cultural heritage and cultural property. The chapter acknowledges how recent developments in specialist areas of public international law are informing multilateral efforts to address the illicit trade in cultural objects. It also tackles the implications of UNESCO’s integration of the sustainable development goals for the 1970 UNESCO and 1995 UNIDROIT Conventions.
Jurisdiction
Authors: Weißer Bettina
Published: June 2024

This chapter expounds on Article 15 of the United Nations Convention against Transnational Organized Crime (UNTOC). Moreover, the provision seeks to prevent safe havens for perpetrators of transnational organized crime by ensuring the jurisdiction of all States possibly affected by transnational crimes. The chapter explains that regulations on jurisdiction are vital since the offences under UNTOC are committed transnationally and fall within the territorial jurisdiction of more than one State. Moreover, regulations must be in line with the international law principles of non-intervention and sovereign equality of States. The chapter also acknowledges the increasing complexity of jurisdictional issues due to transnational crimes committed in cyberspace.
Protection of Witnesses
Authors: Lelliott Joseph
Published: June 2024

This chapter highlights the protection of witnesses as per Article 24 of the United Nations Convention against Transnational Organized Crime (UNTOC). It clarifies the importance of witnesses for a successful investigation and prosecution of offences covered by the Convention. The cooperation and reliability of witnesses can be compromised when they fear harm to themselves or those close to them. Thus, Article 24 places an obligation on States Parties to take appropriate protective measures for witnesses and their loved ones as an essential part of criminal justice responses to Convention offences and the rule of law. The chapter explains that States Parties must act in a way consistent with the provision.
Law Enforcement Cooperation
Authors: Taylor Matthew R
Published: June 2024

This chapter tackles the notion of law enforcement cooperation as indicated in Article 27 of the United Nations Convention against Transnational Organized Crime (UNTOC). It cites how the provision reflected the main purpose of the Convention by prescribing concrete cooperation measures to enhance law enforcement responses. Moreover, the measures of cooperation between law enforcement entities within Article 27 extended beyond police cooperation. Similar to other articles, the origins of Article 27 correlate to the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The chapter provides an overview of the interpretation of Article 27, which includes the general obligation of cooperation for States Parties.
Entry into Force
Authors: Schloenhardt Andreas
Published: June 2024

This chapter discusses Article 38 of the United Nations Convention against Transnational Organized Crime (UNTOC). Article 38 provides that UNTOC will enter into force on a specific date when certain conditions are met. Thus, the provision establishes the conditions that need to be fulfilled for UNTOC to enter into force, referencing the main requirement of 40 instruments of ratification, acceptance, approval, or accession followed by a 90-day waiting period. Moreover, the text of Article 38 is loosely based on the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The chapter acknowledges that the UNTC entered into force on 29 September 2003.
Assistance and Protection of Victims of Trafficking in Persons
Authors: Lelliott Joseph
Published: June 2024

This chapter describes Article 6 of the Trafficking in Persons Protocol, which expands on the provisions of Article 2 and outlines protection and assistance measures for victims of trafficking. It requires States Parties to protect the privacy of victims; grant them appropriate assistance and opportunities to participate during legal proceedings; consider measures to facilitate their physical, psychological, and social recovery; endeavour to ensure their physical safety; and provide them with the possibility of obtaining compensation. It also places an obligation on States to take into account the age, gender, and special needs of victims. Since agreement of the Protocol, a substantial quantity of soft law and other materials have added clarity to the human rights obligations of States when addressing trafficking and, in turn, the scope of protection and assistance owed to victims. There is also broad recognition of States’ obligation to exercise due diligence in identifying victims (and potential victims).
Entry into Force
Authors: Schloenhardt Andreas
Published: June 2024

This chapter addresses Article 17 of the Trafficking in Persons Protocol. Using much of the same language as Article 38 of UNTOC, Article 17 sets out the conditions that need to be fulfilled for the Protocol to enter into force. The main requirement is the minimum number of 40 instruments of ratification, acceptance, approval, or accession which is followed by a 90-day waiting period. Paragraph 1 defines the point in time when the Convention initially comes into force and paragraph 2 concerns the entry into force for States and regional economic integration organizations that become bound after the date determined by paragraph 1. In accordance with Article 17, the Protocol entered into force on December 25, 2003, the first of the Protocols to do so, three months after the entry into force of UNTOC.
Introduction
Authors: Schloenhardt Andreas , Taylor Matthew R
Published: June 2024

This chapter provides an overview of the Smuggling of Migrants Protocol, which was adopted by the General Assembly on 15 November 2000, together with UNTOC and the Trafficking in Persons Protocol. It entered into force on 28 January 2004. On the surface, the Protocol pursues three equally important objectives: to stop the smuggling of migrants, foster international cooperation, and protect the rights of smuggled migrants. Despite these different objectives, as with the Convention and other Protocols, the criminal justice focus is given priority when compared to other aspects. The Smuggling of Migrants Protocol has been widely praised for creating a global legal framework for a common and dangerous phenomenon that affects most countries of the world. Indeed, it defines a crime that occurs worldwide but which few countries have criminalized accurately.
Preamble
Authors: Taylor Matthew R
Published: June 2024

This chapter highlights the Preamble of the Smuggling of Migrants Protocol, which is relatively short but highlights three important themes. These include the need to address the root causes that contribute to migrant smuggling, the value of international cooperation and comprehensive action to prevent and combat the smuggling of migrants, and the need to protect the rights and safety of smuggled migrants. Migrants are smuggled for many reasons, including socio-economic opportunities, to escape conflict or persecution, or for family reunification, among others. In so doing, smuggled migrants often face perilous conditions and may suffer exploitative or degrading treatment. Against this reality, the second clause’s mention of humane treatment and explicit recognition that smuggled persons are rights holders is, therefore, critically important.
Use of Terms
Authors: McAdam Marika
Published: June 2024

This chapter discusses Article 3 of the Smuggling of Migrants Protocol. Article 3 defines key terms including, crucially, the ‘smuggling of migrants’. The definition of this term focuses on the actions of those who act for financial or material benefit, not on the actions of smuggled migrants themselves or those who may facilitate their movement or otherwise support them for non-profit purposes. This focus on the actions of smugglers, rather than the impact of those actions on migrants, cleaves a clear distinction between smuggling of migrants and trafficking in persons, with exploitation of trafficked ‘victims’ being at the heart of the latter. The provision also defines central concepts of ‘illegal entry’, ‘fraudulent travel or identity document’, and reflecting the particular concern for smuggling of migrants at sea, ‘vessel’.
Security and Control of Documents
Authors: Taylor Matthew R
Published: June 2024

This chapter reviews Article 12 of the Smuggling of Migrants Protocol, which addresses the role that travel and identity documents play in facilitating the smuggling of migrants. It does this by focusing on steps that States Parties can take in relation to document creation, issuance, and quality, with the ultimate goal of implementing processes that cannot be abused and producing documents that cannot be easily forged or fraudulently used. Article 12 of the Smuggling of Migrants Protocol provided the model for the text of Article 12 of the Trafficking in Persons Protocol, which is identical, and thus both should be interpreted in the same manner, as well as similar obligations in regional trafficking instruments. The obligations in Article 12 seek to tackle practices commonly employed by smugglers and their associates that enable migrant smuggling to flourish. Research has demonstrated ‘that a substantial percentage of identity-related crime is associated with offences that involve travel and identity documents that are committed with a view to facilitating organized criminal activities such as trafficking in persons and smuggling of migrants’.
Protection and Assistance Measures
Authors: Lelliott Joseph
Published: June 2024

This article outlines protection and assistance measures. It sets out broad standards for States Parties dealing with smuggled migrants, requiring them to preserve and protect the rights of smuggled migrants, protect them from violence, and render them appropriate assistance where their lives or safety are endangered or they are detained. It also requires States Parties to take into account the special needs of women and children. The article points out that the individual States’ obligations are dependent on their treaty obligations, as well as whether particular rights are deemed to have entered into custom or constitute general principles of international law. It emphasizes that the implementation of the Smuggling of Migrants Protocol must not come at the expense of smuggled migrants’ entitlements under international law.
Return of Smuggled Migrants
Authors: Lelliott Joseph
Published: June 2024

This article considers the fundamental return of smuggled migrants, both to deny them the benefit of being smuggled and send a message to other persons considering attempts at unauthorized entry, as a fundamental part of a strategy to preventing and combatting migrant smuggling. It explains the term ‘return’ in broadly entailing the removal of smuggled migrants from one State to another. It is also concerned with States Parties’ obligation to accept the return of their nationals and those with the right of permanent residence. The article contains provisions requiring States to verify smuggled migrants’ nationality or residency status without undue or unreasonable delay and provide them with any documents or authorizations necessary for travel. It reflects the desire of States Parties receiving smuggled migrants to remove them quickly and without impediment.
Depositary and Languages
Authors: Schloenhardt Andreas
Published: June 2024

This article is based on Article 41 of the United Nations Convention Against Transnational Organized Crime (UNTOC). It designates the UN Secretary-General as the depositary of the Convention and lists the six authentic languages of the Convention. It also points out that original of the Smuggling of Migrants Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, will be deposited with the Secretary-General of the United Nations. The article emphasizes that the Secretary-General of the United Nations is designated depositary of the Protocol. It uses the same language as Article 41 of UNTOC and reference is made to its commentary.
Statement of Purpose
Authors: Block Johannes
Published: June 2024

This article promotes, facilitates, and strengthens cooperation among States Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition. It points out how the States’ deals in firearms can be part of the problem if regulations pertaining to authorization and use are not taken seriously in the buyer’s country. It also discusses the notorious secrecy of the producing industry that adds to potential issues with oversight and consequent fighting of grey and black market trafficking. The article outlines obligations of States Parties to implement preventive and repressive measures against firearms trafficking. It proposes that an additional aim of ensuring investigation and prosecution of the offences established under the present Law should be added when transposed into national law.
Confiscation, Seizure and Disposal
Authors: Block Johannes
Published: June 2024

This article focuses on confiscation, seizure, and disposal of illicitly trafficked or manufactured firearms, which are crucial measures in the fight against the illegal arms trade. It considers the destruction of confiscated and seized firearms as the most secure way to keep them from returning to the illicit market and is considered best practice by the Working Group on Firearms established by the Conference of the Parties to the United Nations Convention Against Transnational Organized Crime (UNTOC). It also applies to the seizure, confiscation, and disposal of any property that is either proceeds of crime or used or destined for use in offences covered by the Convention. The article is important in cases concerning firearms not connected to the Convention’s offences. It obliges States Parties to establish the stated measures for all cases of illicitly manufactured or trafficked firearms.
Settlement of Disputes
Authors: Schloenhardt Andreas
Published: June 2024

This article provides several avenues for the settlement of disputes between States Parties over the interpretation or application of the Firearms Protocol. It encourages States Parties to settle their disputes through negotiations and permits States Parties to opt out of arbitration and International Court of Justice (ICJ) processes by making a reservation. If negotiations fail to produce an outcome, the dispute may be submitted to arbitration and, if the arbitration did not result in an agreement within six months, the dispute may be referred to the ICJ. The article points out that any dispute between two or more States Parties concerning the interpretation or application of the Protocol that cannot be settled through negotiation within a reasonable time will be submitted to arbitration. States Parties may refer the dispute to ICJ by request in accordance with the Statute of the Court.
Depositary and Languages
Authors: Schloenhardt Andreas
Published: June 2024

This article designates the UN Secretary-General as the depositary of the Convention and lists the six authentic languages of the Convention. The Arabic, Chinese, English, French, Russian and Spanish texts of the Firearms Protocol are deposited with the Secretary-General of the United Nations. It also emphasizes that the Secretary-General of the United Nations is designated as depositary of the Protocol. The article cites Article XIX(2) of the draft prepared by Canada in 1998 that designated the Secretary-General as the depositary for the Firearms Protocol. It uses the same language as Article 41 of the United Nations Convention Against Transnational Organized Crime (UNTOC).
Articles 19–23 of the VCLT: Reservations (overview)—flexibility devices in applying treaties in the field of investment
Authors: Pellet Alain , Merlin Jean-Baptiste
Published: June 2024

This entry covers the notion of reservations as per provisions within the 1969 Vienna Convention on the Law of Treaties (VCLT). It defines reservation as a unilateral statement made by a State, whereby it purports to exclude or modify the legal effect of certain treaty provisions in their application to that State. International investment law practice provides no basis for challenging the International Law Commission’s finding of a single legal regime of treaty reservations. Moreover, investment lawmakers took full advantage of the modulation regime being largely modelled on reservations while complementing it with alternative devices without undermining the general reservation regime. The entry explains devising exceptions in treaty-making practice in the international investment law field.
Article 24 of the VCLT: Entry into force
Authors: Voon Tania
Published: June 2024

This entry examines the entry into force of treaties pursuant to Article 24 of the Vienna Convention on the Law of Treaties (VCLT), with a focus on cases arising before investment arbitration tribunals or the International Court of Justice (ICJ). At least some parts of Article 24 appear to reflect customary international law. Its effects nevertheless depend in large part on the context and wording of the subject treaty, most often the ICJ statute or a bilateral investment treaty. In addition, Article 24 interacts closely with other provisions of the VCLT, most notably Articles 16 and 28, as reflected in disputes that have arisen to date regarding (i) the principle of non-retroactivity of treaties and (ii) a state’s consent to be bound by a treaty.
Article 26 of the VCLT: Pacta sunt servanda
Authors: Yeginsu Can , Pearsall Patrick
Published: June 2024

This entry discusses the customary principle of pacta sunt servanda enshrined in Article 26 of the Vienna Convention on the Law of Treaties (VCLT). It sets out the doctrinal requirements and presents the decisions on Article 26. The entry finds that many of the principles identifiable in the interpretation and application of Article 26 and the principle of pacta sunt servanda are common across international dispute resolution fora, including investor-State tribunals. Nonetheless, the latter display a greater willingness to construe the good faith requirement as an autonomous standard, in contrast to other international courts and tribunals. A first explanation for this deviation is the breadth of the applicable law clauses in investment disputes that grant investment tribunals more flexibility than other international courts and tribunals. A second explanation suggests that investors, as non-state actors, are not bound to public international law to the same extent as States. This bestows arbitrators with additional flexibility to consider external norms better reflecting the evolving regulatory needs of a State.
Article 30 of the VCLT: Application of successive treaties relating to the same subject-matter
Authors: Aughey Sean
Published: June 2024

This entry discusses Article 30 of the Vienna Convention on the Law of Treaties (VCLT). It explains that Article 30 contains default rules on the priority of application of successive treaties relating to the same subject matter. Moreover, the provision must be understood under the context of other elements of the law of treaties and the law of State responsibility. The entry provides an overview of the application of Article 30 in non-investment disputes and investment disputes. It then mentions the absence of detailed consideration of Article 30 by the International Court of Justice (ICJ) or inter-State arbitration tribunals, which makes it difficult to assess whether the practice represents any form of departure from the approach under general international law.
Article 33 of the VCLT: Interpretation of treaties authenticated in two or more languages
Authors: Tzeng Peter
Published: June 2024

This entry considers the interpretation of treaties authenticated in two or more languages according to Article 33 of the Vienna Convention on the Law of Treaties (VCLT). Many international adjudicatory bodies and commentators have considered the totality of Article 33 as reflecting customary international law. However, the International Court of Justice (ICJ) has expressly recognized only the article’s fourth paragraph as customary. The entry looks into the divergence between investor–State tribunals and other international adjudicatory bodies on the question of the application of the common meaning rule. It discusses the reasons for divergences, such as the utility of Article 33’s reconciliation rules.
Article 60 of the VCLT: Termination or suspension of the operation of a treaty as consequence of its breach
Authors: Fabri Hélène Ruiz , Ayman Randi
Published: June 2024

This entry explores Article 60 of the Vienna Convention on the Law of Treaties (VCLT). It explains that the provision entitles a treaty party to seek suspension or termination of the treaty due to its material breach by another party. Moreover, Article 60 alludes to the principle of inadimplenti non est adimplendum and commonly accepted as reflective of customary international law. The entry elaborates on the notion of material breach, which excludes its application to any other treaty breach. It then looks into Article 60 as received by international courts and tribunals before detailing the potential relevance for international investment practice.
Article 4 of the ARSIWA
Authors: Brown Chester
Published: June 2024

This entry discusses Article 4 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on attribution of conduct of state organs. The entry sets out the requirements of this customary rule and summarises the decisions by investment tribunals and other international courts and tribunals. The rule enshrined in Article 4 features prominently in investment arbitration decisions. On the whole, investment tribunals apply the rule consistently with the practice of the International Court of Justice (ICJ) and other international courts and tribunals. However, investment tribunals deviate, including by relying exhaustively on relevant domestic law to determine whether or not an entity is a de jure or de facto State organ; failing to distinguish between the separate tests of attribution in Articles 4 and 5 of the ARSIWA and conflating them in a single test; and applying the rules of attribution in connection with claims for breach of contract; and recognising that the rules of attribution in the ARSIWA are residual in character, with the result that the applicable treaty (such as the NAFTA) may contain a lex specialis with respect to the conduct of certain State entities.
Article 13 of the ARSIWA
Authors: Annacker Claudia , Horváth Enikő
Published: June 2024

This entry examines Article 13 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Article 13 applies the basic principle of non-retroactivity in the field of State responsibility: a State can only be responsible for a breach of an international obligation if the obligation is in force for the State at the time of the alleged breach. The principle of non-retroactivity codified in Article 13 is uncontroversial and its application by investment treaty tribunals generally aligns with that of other international judicial bodies. The entry analyses the application of Article 13 in general international law and international investment law, which has been inconsistent, especially in the treatment of pre-entry into force conduct in the context of continuing and composite acts.
Article 23 of the ARSIWA: Force majeure
Authors: Paddeu Federica
Published: June 2024

This entry considers the defence of force majeure, as codified in Article 23 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). It explains the requirements of the defence in general international law, focusing in particular on the standard of ‘impossibility of performance’ – a very high standard in respect of which there remain disagreements. It then considers the application of this defence in international investment law, and the deviations in this field from the requirements of the defence under general international law.
Denial of justice
Authors: Hepburn Jarrod
Published: June 2024

This entry explains that denial of justice is a long-established rule of customary international law relating to detrimental treatment suffered by aliens in the domestic administration of justice within another state. On typical accounts of the rule, denial of justice arises when judges in a local court are corrupt, biased, or unreasonably slow. The entry details matters of content, judicial finality, standing, temporal jurisdiction, and remedies under general international law and international investment law. It concludes that investment tribunals overall align strongly with the customary notion of denial of justice elaborated by the International Court of Justice (ICJ) and other international courts and tribunals. This finds its justification in interpretive approaches linking the text of investment treaties to customary standards of protection such as denial of justice. Investment tribunals have diverged from general international law practice, however, on questions of standing, driven by lex specialis rules in investment treaties lessening the relevance of the customary position.
Abuse of process
Authors: Bismuth Régis
Published: June 2024

This entry examines abuse of process. Abuse of process has become a commonplace allegation in proceedings before international courts and tribunals, especially in investment arbitration. Several factors account for variations in applying abuse of process and the International Court of Justice (ICJ)’s reluctance, including the nature of parties and the specificity of interstate proceedings. The entry explains that interstate courts, investment tribunals, and other international adjudicative bodies have contributed to shaping the abuse of process doctrine in general international law. It then details the applicable standards governing the abuse of process claims in international investment law and general international law.
Unjust enrichment
Authors: Claussen Kathleen
Published: June 2024

This entry discusses unjust enrichment, where one entity has been enriched at another’s expense in a way the law regards as unjust. The treatment of unjust enrichment in international law varies, which is reflected in the lack of consensus among the decisions of international courts and tribunals. The entry finds that unjust enrichment claims are more frequent in investment law than at the International Court of Justice (ICJ). The analysis of unjust enrichment illustrates how a general principle can lead to divergent applications and fragmentation in international law. Moreover, the presence and absence of unjust enrichment within institutions contribute to the long-standing conversation on fragmentation.
Regional Developments: Asia
Authors: Blay Sam
Published: June 2024

This chapter looks into the 1951 Convention under the context of Asia. It notes that Asia is the region with the least number of States that accept the 1951 Convention. Asia covers a vast and complex geopolitical region in which political events and natural disasters contribute to creating significant undocumented mass population movements with important implications for refugee law and practice. Even though the Asian-African Legal Consultative Organization (AALCO) operates in the region, its principles are non-binding and hardly impact on refugee law and practice there. The chapter also tackles the Human Rights Declaration of the Association of Southeast Asian Nations (ASEAN) concerning their member States' commitment to the rights of every person in receiving asylum. It
Preamble to the 1951 Convention
Authors: Alleweldt Ralf
Published: June 2024

This chapter focuses on the Preamble to the 1951 Convention. It explains that the Preamble to a treaty precedes the operative provisions of the treaty. A preamble defines the considerations which have led the contracting parties to conclude it, but it cannot create rights or obligations for either of the parties. Moreover, the Preamble insists that the implementation of the 1951 Convention is not a matter just for the contracting States, since its application is subject to international supervision by the United Nations High Commissioner for Refugees (UNHCR). The chapter then considers the interrelation of the Preamble with other provisions and declarations.
(The Term ‘In the Same Circumstances’/ L’Expression ‘Dans les Mêmes Circonstances’)
Authors: Mwakagali Mpoki , Marx Reinhard
Published: June 2024

This chapter notes that Article 6 of the 1951 Convention defines the 'in the same circumstances' phrase in an effort to avoid repetition of what the term implies. The phrase is used to modify the duty to assimilate refugees into relevant groups. Additionally, Article 6 aims to strike a balance between the general principle of assimilating refugees into other aliens and the recognition of the impediments refugees face due to their status. The Convention invokes the possibility of flexibility by considering the difficulties refugees would front if there was a uniformized standard of treatment with nationals or foreign nationals in the country of refuge. The chapter also tackles the historical development and drafting history of Article 6.
(Continuity of Residence/Continuité de Résidence)
Authors: Schmahl Stefanie
Published: June 2024

This chapter discusses Article 10 of the 1951 Convention. Since the Second World War forcibly displaced millions of people, the 1951 Convention sought to mitigate the results of residence interruption. Article 10 highlighted that deported people shall be deemed to satisfy the requirement of the regular residence. However, the wording of the article is not restricted to cases explicitly covered by the 1951 Convention and must be assumed to have a general application. The chapter clarifies that the stipulations contained in Article 10 are transitional in nature. It notes the arguments surrounding the article, which includes the calculation of a period of residence.
(Refugee Seamen/Gens de Mer Réfugiés)
Authors: Bank Roland
Published: June 2024

This chapter cites that the 1951 Convention's Article 9 contains a derogation clause. It starts with how Article 9 abstains from detailing the measures the contracting States may provisionally apply once the requirements of the clause are met by certain events. Provisional measures are characterized by four broad elements: measures bound to certain situations, public interests, individualized nationality, and time. The chapter acknowledges that circumstances triggering the State powers under Article 9 are not normal. It also mentions the doubts that the article's measures are permissible under human rights law since the 1951 Convention's provisional measures became more or less outdated.
(Personal Status/Statut Personnel)
Authors: Metzger Axel
Published: June 2024

This chapter notes Article 12 as the first article of the 1951 Convention's Chapter II that contains provisions about the juridical status of refugees. It explains that Article 12 indicates a choice of law rule of eminent impotence addressing the law applicable to the personal status of refugees, especially about their legal capacity, legal questions on family relations, and legal issues of succession. Moreover, the article prevents a refugee from being treated according to the laws of the State they fled from. The chapter mentions that Article 12 supports the integration of refugees into the asylum State. It cites that national courts regularly applied the article since its drafting.Human rights
(Access to Courts/Droit d’Ester en Justice)
Authors: Elberling Björn , Stern Rebecca Thorburn
Published: June 2024

This chapter overviews the details of Article 16 of the 1951 Convention, which primarily aims to grant refugees relatively unhindered access to contracting parties' courts. It highlights that the article can be understood as a non-discrimination or equal treatment provision. After its uncontroversial drafting process, Article 16 has a rather fundamental character within the 1951 Convention’s system of substantive rights. The chapter elaborates on the drafting history of Article 16 and its subsequent relevant provisions and reservations. Additionally, the article influenced the question of refugee status determination since it may provide certain remedies for asylum seekers against negative status decisions.Human rights
Lawfulness of processing
Authors: Tzanou Maria
Published: June 2024

This chapter examines Article 8 of the EU Law Enforcement Directive (LED). The principle of ‘lawful processing’ under Article 8 LED requires that every processing under the Directive must have a legal basis and must be necessary for the performance of a task carried out by a competent authority for the purposes of the prevention, investigation, detection, or prosecution of criminal offences or the execution of criminal penalties, as well as the safeguarding against and the prevention of threats to public security. The lawfulness of processing serves other values such as transparency and accountability, and ensures that individuals can exercise their data subject and redress rights. Lawfulness of processing is also important to ascertain and enforce the principle of purpose limitation. For this reason, Article 8(2) LED requires that Member State law regulating processing within the scope of the LED should specify ‘at least the objectives of processing, the personal data to be processed and the purposes of the processing’.
Specific processing conditions
Authors: Tzanou Maria
Published: June 2024

This chapter evaluates Article 9 of the EU Law Enforcement Directive (LED), which contains a number of different provisions. The first two paragraphs of Article 9 LED constitute a manifestation of the purpose limitation principle. It provides that personal data collected by competent authorities for the purposes set out in the LED should not be processed for other purposes unless such processing is authorised by EU or Member State law. Article 9 LED also stipulates that the General Data Protection Regulation (GDPR) applies where competent authorities are entrusted with the performance of tasks other than those performed for the purposes of the LED, including for archiving purposes in the public interest, scientific or historical research purposes, or statistical purposes. Moreover, Article 9 LED requires that where specific conditions for processing are applicable to personal data, the transmitting competent authority should inform the recipient of those conditions and the requirement to comply with them.
Communication and modalities for exercising the rights of the data subject
Authors: Fuster Gloria González
Published: June 2024

This chapter assesses Article 12 of the EU Law Enforcement Directive (LED), which opens Chapter III LED, devoted to the ‘Rights of the data subject’. Data subject rights are a key component of European data protection law. The overall objective of Article 12 LED is to strengthen the rights of data subjects, by clarifying the modalities applying to their exercise and formal requirements for communicating with data subjects. It obliges Member States to impose on data controllers an obligation to facilitate the exercise of data subject rights, as well as an obligation to take reasonable steps to communicate in a clear manner. Article 12 LED also establishes the principle according to which the exercise of data subject rights must be free of charge. It provides, however, for exceptions to this general rule, as well as to the obligation to act upon data subjects’ requests, if the requests are manifestly unfounded or excessive. Finally, Article 12 LED establishes that data controllers can in some cases request additional information from data subjects for identification purposes.
Rights of the data subject in criminal investigations and proceedings
Authors: Franssen Vanessa , Corhay Marine
Published: June 2024

This chapter examines Article 18 of the EU Law Enforcement Directive (LED). Article 18 LED allows Member States to apply national law when data subjects exercise their rights of information, access, rectification or erasure, and restriction of processing of personal data contained in a judicial decision or record or case file that are processed in the course of criminal investigations and proceedings. While the balance between the right to the protection of personal data and specific criminal justice needs is struck at EU level in the case of Article 17 LED, Article 18 LED expressly refers to national law. In doing so, Article 18 LED also demonstrates the reluctance of Member States to approximate the way in which criminal investigations are organised. Article 18 LED thus emphasises Member States’ sovereignty in the field of police and judicial cooperation.
Obligations of the controller
Authors: Zerdick Thomas
Published: June 2024

This chapter details Article 19 of the EU Law Enforcement Directive (LED), which establishes the requirement for Member States to implement in national legislation a general accountability obligation for the controller. The wording of Article 19 LED demonstrates the will of the legislators to compel the controller not simply to comply with the obligations resulting from the LED but to go further, namely, to take proactive actions as well as ‘to be able to demonstrate’ that the processing is lawfully performed. This principle strengthens the role of the data controller and increases its responsibility. This data protection principle is referred to as the ‘principle of accountability’. Article 19 LED was aligned with the wording of Article 24 of the General Data Protection Regulation (GDPR). Accordingly, where the provisions of the LED follow the same principles as the provisions of the GDPR, those two sets of provisions should be interpreted homogeneously.
Prior consultation of the supervisory authority
Authors: Hansen Marit
Published: June 2024

This chapter discusses Article 28 LED, which describes the conditions for and the procedure of the prior consultation that has to be performed by the supervisory authority to assess the compliance of the processing. It reviews the types of prior consultation that are characterised by an ex-ante check of compliance and risk control. The first type of prior consultation addresses the compliance of a processing planned by a controller, while the second type of prior consultation focuses on legislative or regulatory measures related to processing of personal data. The chapter cites Article 28(2) LED that demands the supervisory authority to be consulted in general during the preparation of any legislative proposal related to processing. Article 28 LED is meant to stress the cooperative and self-paced approach to involve the competent supervisory authority in its double role of being an expert on the matter.
General conditions for the members of the supervisory authority
Authors: Hijmans Hielke , van Brakel Rosamunde
Published: June 2024

This chapter discusses the general conditions for the members of the supervisory authority as per Article 43 of the EU Law Enforcement Directive (LED). It provides an overview of the legal background of Article 43 LED and the provision's interplay with the supervisory authority. Article 43 LED is considered a provision that safeguards the independent status of supervisory authorities by specifying the conditions for the members of the authority. Moreover, under a broader context, the provision can be viewed as a means of implementing the requirements for independence of supervisory authorities stemming from the Court of Justice of the European Union (CJEU) case law. Additionally, Article 43 LED aims at reconciling the Member States’ institutional autonomy concerning the establishment, organisation, and structure of supervisory authorities.
Rules on the establishment of the supervisory authority
Authors: Hijmans Hielke , van Brakel Rosamunde
Published: June 2024

This chapter details the rules on the establishment of the supervisory authority according to Article 44 of the EU Law Enforcement Directive (LED). It discusses the legal background and analysis of the provision. Similar to LED's Article 43, the article can be viewed as a safeguard to guarantee the independence of supervisory authorities, which originates from the case law of the Court of Justice of the European Union (CJEU) and Treaty provisions. Article 44(1) LED highlights that supervisory authorities play a role in facilitating the free flow of personal data. Meanwhile, Article 44(2) LED revolves around the professional secrecy of the supervisory authority and its members.
Business and Human Rights
Authors: Robert McCorquodale
Published: June 2024

Business and Human Rights is a rapidly growing area of law, which has dramatically transformed many parts of international law. This book explores how the responsibility for human rights abuses has transitioned from a purely state obligation to also being the responsibility of businesses. Business responsibility for human rights impacts has become subject both to legislation and to court decisions in some instances when their activities lead to human rights abuses. The book shows the importance of the UN Guiding Principles on Business and Human Rights in these developments, and examines their influence on international, regional, and national law. It also analyses the changes on state obligations to protect human rights, on the corporate responsibility for human rights abuses, and on effective access to remedies for those adversely impacted by business activities. Each of these shifts has consequences on core tenets of international law, such as sovereignty and jurisdiction, and has implications for crafting new international law in areas such as climate change and technology.
Development of Business and Human Rights Law
Authors: Robert McCorquodale
Published: June 2024

This chapter explores the development of business and human rights law. It outlines the history of the international community’s efforts to create clarity about the international legal obligations of businesses for their activities affecting human rights. Due to its traditional approach focused on state actions and state sovereignty, international law struggled to deal with the rise of businesses in the international legal order. The chapter introduces the three-pillar structure of the United Nations Guiding Principles on Business and Human Rights 2011 to consider the extent of the state’s international legal obligations to protect the human rights of persons adversely affected by business activities.
International Regulation of Business Concerning Human Rights Issues
Authors: Robert McCorquodale
Published: June 2024

This chapter tackles the development of an international legal framework on business and human rights. It discusses the development of the United Nations Guiding Principles on Business and Human Rights 2011 (UNGPs). The UNGPs were intended to provide practical guidance on how states and businesses can enhance standards and practices to achieve tangible results for affected individuals and communities. The UNGPs’ influence is shown across a wide sweep of regulation, including financial and labour issues and in the work of international organizations and states. Thus, international regulation of business for human rights abuses became more coherent and consistent after the UNGPs, which has become recognized as the global authoritative standard.
Corporate Responsibilities and Human Rights Due Diligence
Authors: Robert McCorquodale
Published: June 2024

This chapter focuses on corporate responsibilities and human rights due diligence. Corporate responsibility refers to a social expectation on businesses as part of a social licence to operate, as explained in the Framework Report of 2008, which formed the basis for the UNGPs. A key aspect of the corporate responsibility to respect human rights is human rights due diligence..
Access to Remedies for Victims
Authors: Robert McCorquodale
Published: June 2024

This chapter covers the issue of access to remedies for victims concerning adverse human rights impacts from business activity. The United Nations Guiding Principles on Business and Human Rights 2011 (UNGPs) make clear that the responsibility of states and businesses in relation to human rights abuses by businesses includes access to a remedy. Pillar III of UNGPs includes access to judicial and non-judicial remedies by the state and access to non-judicial remedies by businesses. The remedy must be a remedy to the victims in accordance with their particular circumstances..
Future Developments in Business and Human Rights Law
Authors: Robert McCorquodale
Published: June 2024

This chapter explores the future developments in business and human rights law. It considers the developments in regard to climate change and with the increase in the use of technology. The chapter looks into climate change cases and the opportunities and challenges of increased technology use. It considers the progression in the negotiations on a treaty on business and human rights.
Conclusions: International Law, Business, and Human Rights
Authors: Robert McCorquodale
Published: June 2024

This concluding chapter examines the notion of business and human rights as part of international law. It demonstrates that international regulation has affected both domestic legislation and business awareness across many sectors, such as domestic criminal law and corporate management. The transformative idea of businesses having human rights responsibilities has had clear effects on international law. Moreover, the creation of the United Nations Guiding Principles on Business and Human Rights 2011 (UNGPs) was pivotal in developing law at both the national and international levels.
Good and Bad Diplomacy
Authors: Roberts Ivor , MacMillan Margaret
Published: June 2024

This chapter explores the distinction between good and bad diplomacy. Diplomacy succeeds under certain conditions such as clear and realistic goals, both parties' wants, and trust. However, diplomacy fails as a result of impossible demands, lack of political will, and neglect of diplomats and their superiors of preparation. The chapter looks into the Great War, which features the assassination of Archduke Franz Ferdinand to Britain’s declaration of war, as a reference to the most egregious example of failed diplomacy. It then details how diplomacy operated in the cases of Berlin's Cuban missile crisis, former Yugoslavia's descent into war, and the Good Friday Agreement concerning Northern Ireland.
Introduction to International Law
Authors: Wilmshurst Elizabeth
Published: June 2024

This chapter introduces the relevance, nature, sources, and content of international law. It explains that international law is an essential part of the content and conduct of international relations since relationships among States are established by agreements binding in international law. Moreover, international law may be defined as the law governing relations between States, and between States and international organizations. The chapter then looks into the sources of international law as per the Statute of the International Court of Justice. Some of the major areas within international law are broadly categorized with matters concerning subjects of international law, state sovereignty, jurisdiction, non-intervention, sea and maritime zones, and international economic relations.