bluuebunny/crossref_metadata_2025 huggingface dataset:
Jurisdiction beyond Contentious Cases: What Else Can the System Do?
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter explores the ways in which the Inter-American Commission on Human Rights and Inter-American Court of Human Rights may act to protect rights beyond contentious jurisdiction. It looks at the system’s mechanisms for ordering urgent protection for individuals and groups facing threats. It considers categories of beneficiaries, focuses on the requirements for obtaining precautionary measures from the Commission, and discusses the practical consequences of having these measures granted based on the experience of past cases. It reviews the manifold non-contentious activities to promote human rights that the Commission has developed in its more than 50 years of activity in the region. Finally, the chapter discusses the advisory jurisdiction of the Court, the purposes it serves, those empowered to request the Court’s opinion and its potential for influencing government choices.
Mass Atrocity, Contemporary Responses, and Transitional Justice
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter examines the work of the Inter-American Commission on Human Rights and Inter-American Court of Human Rights Commission in pursuing accountability for systematic human rights violations. It considers the case of Argentina to examine in detail the history of human rights violations, transition, impunity and, ultimately, the beginning of a process of accountability. It discusses the role of truth commissions in countries transitioning from military dictatorships and rights-abusing regimes or internal armed conflict, the prosecution of members of military forces after transitions, and the effects that subsequent amnesty laws have had on shielding abusers from accountability in the region. It explores how activists have used the Inter-American system to challenge amnesty laws and pardons in Argentina, Chile, El Salvador, and Uruguay.
The Right to Life
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter explores the expanding concept of the right to life in the inter-American system, moving from the basic duty not to take life, to the duty to protect vulnerable groups and avoid foreseeable risks to life, to the duty to take regular measures to preserve life, and finally to the Inter-American Court’s doctrine regarding states’ duty to guarantee those within their jurisdictions access to the conditions that make possible a dignified life. It also examines the System’s death penalty jurisprudence, emphasizing the existing limits on this form of punishment, state obligations regarding due process and other guarantees, and the recent trends in domestic limitations on its use. It focuses on the case of Trinidad and Tobago, which withdrew its ratification of the American Convention due largely to societal support for the death penalty. Finally, the chapter considers the issue of abortion.
Women’s Rights, Gender, and Sexuality
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter examines the inter-American system’s response to gender-based human rights violations, particularly the Commission and Court’s jurisprudence on violence and discrimination against women, and women’s access to social, economic, procedural, civil, political, and reproductive justice. It reviews the 1994 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, also known as the “Belém do Pará” Convention. It also considers the Commission’s role in developing the inter-American system’s jurisprudence on gender and on women’s rights, in individual cases, thematic reports, and through Rapporteurships on the Rights of Women and on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex Persons (LGBTI).
Indigenous and Tribal Peoples’ Rights and the Inter-American System
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter covers the inter-American system’s jurisprudence and actions to monitor, protect, and promote the rights of indigenous, tribal, and afro-descendant communities of the Americas. It begins with a survey of the development, scope, and purpose of the definition of indigenous communities and tribal peoples in the Inter-American system. It then considers three Court cases from Colombia and Guatemala addressing racial discrimination, assassination, and mass murder against indigenous peoples to examine the depth of ongoing, systemic violence and the obligations states owe to their indigenous communities. Next, it turns to the situation of and protections for indigenous territories in the Inter-American system, highlighting the holding and impacts of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua case in which the Court affirmed an indigenous community’s collective right to land and natural resources under the American Convention.
Reparations and Compliance
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter discusses the development of the inter-American system’s comprehensive approach to reparations for violations of human rights under Article 63 of the American Convention. It begins by considering how the Commission’s enabling statute informs its jurisprudence on reparations. It then examines the content and scope of its early reparations recommendations from cases in Chile, Uruguay, Argentina, and Guatemala. Next, it turns to the outcomes of the inter-American systems remedies and reparations, focusing on the historical rates and trends in compliance with the Commission and Court’s recommendations and orders. The chapter also examines how definitions of "victim" and "injured party" have evolved and the impact such changes on the Court’s reparation orders. It closes by examining the question of compliance with the Court’s orders, from its legal basis to its monitoring system, and the effectiveness and outcomes of its decisions on reparations.
The Future of the Inter-American Human Rights System
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter begins by critically appraising the efficacy of the inter-American system of human rights and recent shifts in the jurisprudence of the Commission and Court. It then turns to proposals for improving the system’s mechanisms for protecting and promoting human rights. It considers major challenges to the system’s operation and the implementation of such changes, particularly the lack of adequate financial resources and the lack of universal ratification of the American Convention in the Organization of American States. The chapter then discusses the domestic political and legal obstacles to ratifying the American Convention in the United States and Canada, before considering the threat of denunciation by already-ratified states. The chapter concludes by considering various proposals of change and reform, as well as existing political pressures and initiatives that could undermine the system.
Authors: Schloenhardt Andreas
Published: August 2024

This chapter provides a background on the criminal justice measures for the illicit manufacturing of and trafficking in firearms. It emphasizes the complications on firearms, their parts and components, and ammunition, which are traded legally between private entities, between private and State entities, and between States and their agencies. It also talks about the challenging task of Firearms Protocol and the fierce opposition it faces by some States, industry groups, and individuals. The chapter provides a background on mechanisms to criminalize certain illicit activities whilst simultaneously creating regulations for the licit firearms trade. It highlights the international cooperation to stop the illicit manufacturing of and trafficking in firearms, their parts and components, and ammunition.
Article 38 (Settlement of Disputes/Règlement des Différends)
Authors: Oellers-Frahm Karin
Published: August 2024

This chapter considers Article 38 of the 1951 Convention and Article IV of the 1967 Protocol. Both provisions contain compromissory clauses attributing compulsory jurisdiction to the ICJ under Article 36 of the Statute of the International Court of Justice (ICJ Statute) concerning the disputes arising under the 1951 Convention. The compromissory clauses are aimed at strengthening the proper application and interpretation of a treaty and the rule of international society law in general. The chapter explains that a compromissory clause addressing the ICJ reminds States parties of the treaty of their obligation to settle disputes peacefully. Additionally, the clauses remind the parties that a body exists to give an authentic interpretation of the treaty to guarantee its uniform understanding and application.
Article 39 (Signature, Ratification and Accession/ Signature, Ratification et Adhésion)
Authors: Geiß Robin , Li Yao
Published: August 2024

This chapter looks into the 1951 Convention's Article 39 and the 1967 Protocol's Article V. In 2000, the Secretary-General identified the 1951 Convention as belonging to a core group of 25 multilateral treaties representative of the key objectives of the UN and the spirit of its Charter. Additionally, the rules found in the Vienna Convention on the Law of Treaties (VCLT) apply to the 1951 Convention as a matter of customary international law. On the other hand, the 1967 Protocol does not amend the 1951 Convention but binds its parties to observe the substantive provisions. The chapter cites that the 1967 Protocol constitutes an independent and complete international instrument that is open not only to the States parties to the 1951 Convention.
Article 41 (Federal Clause/Clause Fédérale)
Authors: Gil-Bazo María-Teresa
Published: August 2024

This chapter discusses Article 41 of the 1951 Convention and Article VI of the 1967 Protocol. Similar to Article 40, the purpose of Article 41 primarily revolves around the facilitation of federal States by allowing for exceptions in the territorial application of this instrument. Additionally, the provision facilitated non-unitary States' participation in the 1951 Convention as a whole and protected the applicability of refugee status in international law. The chapter explains that the 1967 Protocol also aims to achieve the widest possible adherence regardless of the refugees' temporal and geographical limitations. It expounds on the provisions' drafting history and historical developments.
Article 42 (Reservations/Réserves)
Authors: Pellet Alain
Published: August 2024

This chapter explicates the extent of Article 42 of the 1951 Convention and Article VII of the 1967 Protocol. Both provisions cover a wide range of legal questions relating to the rules applicable to reservations to treaties and interpretative declarations. The text and the practice of reservations to the 1951 Convention and the 1967 Protocol achieve the goal of a fair balance between the search for universality and the preservation of the Convention's integrity. The chapter explains how the constant trend of reservation withdrawal is the proper way to rebuild Convention's integrity. It highlights the United Nations High Commissioner for Refugees (UNHCR) as the guardian of the integrity of the 1951 Convention.
Engagement of Sri Lanka’s Supreme Court with International Law in its Fundamental Rights Jurisdiction
Authors: Gunaratne Dakshinie Ruwanthika
Published: August 2024

The chapter examines the modalities of engagement of Sri Lanka’s Supreme Court with international law in its fundamental rights jurisdiction. It details the reception of international norms into the domestic legal system, through the Supreme Court’s practice and its progressive engagement with international law aiming to expand the constitutional rights of Sri Lanka’s citizens. The chapter also highlights several instances where the Court disregarded international law relying on the hierarchical superiority of domestic law. Because of the doctrine of judicial precedent, once the Supreme Court clarifies, expands, or rejects norms based on international law, this decision may become part of domestic law. The chapter concludes that the Supreme Court’s engagement with international law has mostly fostered alignment of international and domestic norms, with a few, but significant, exceptions. In this manner, the Supreme Court has become a key institution for the implementation and enforcement of international law in Sri Lanka.
Engagement of Albanian Courts with International Law
Authors: Zyberi Gentian , Sali Semir
Published: August 2024

The chapter discusses the engagement of the highest Albanian courts, the Albanian Constitutional Court and the Albanian Supreme Court, with international law. The Constitutional Court is mandated by the Constitution to assess the compatibility of Albanian laws with international law; the Supreme Court plays an important role in the unification or amendment of judicial practice. Firstly, the chapter discusses the status of international law in Albania. Second, it analyses relevant cases relating to human rights obligations under the European Convention on Human Rights, the law of immunities, international criminal law, and the law of the sea, based on the typology developed by the International Law Association Study Group. Judicial engagement with international law falls mainly within the category of alignment, with few occasions of avoidance and contestation. Finally, the chapter seeks to assess whether Albanian courts follow a common pattern in approaching international law; and if so, identify it.
Engagement of Kosovo’s Domestic (Internationalized) Courts with International Law
Authors: Ratniece Zane
Published: August 2024

Until 2018, Kosovo’s courts were also staffed with international judges, appointed by the UN (UNMIK) or the EU (EULEX) mission in Kosovo. Furthermore, for some time, Kosovo’s legal system was largely based on UN Security Council Resolution 1244 and UNMIK regulations, which, according to the ICJ, presented lex specialis international law. Hence, Kosovo was essentially governed by international law until its 2008 declaration of independence. Thereafter, Kosovo repealed UNMIK regulations, passing its own laws. Kosovo’s courts have thus engaged with international law in a unique legal setting. The chapter unpacks their strategies of engagement with UNMIK regulations when resolving questions regarding the latter’s applicability in the new constitutional framework. It also scrutinizes how different approaches to UNMIK regulations have affected judicial engagement with customary international law. Finally, the chapter examines how Kosovo courts have sought to align their pronouncements with international standards on the prosecution and adjudication of international crimes.
The Principle of Systemic Integration in International Law
Authors: McLachlan KC Campbell
Published: August 2024

International law has greatly expanded in reach and density over the past few decades, and its fragmented and decentralized nature is causing anxiety among those who need to resolve legal dilemmas in a system that lacks vertical hierarchy. Although the principle of systemic integration is embodied in Article 31(3)(c) of the Vienna Convention 1969, its operation and significance has not been fully assessed. This book fills the research gap by analysing the manner in which the principle has been applied in the judicial decisions of international courts and tribunals, together with the practice of States and international organizations in the framing of international instruments and their application. The book closely examines legislative texts and cases to reflect on the principle’s theoretical foundations and actual application in practice. It argues that the principle of systemic integration contributes to an orderly framework within which conflicts between institutions, and between legal norms, may be addressed. It further explores how disparate parts of international law are integrated in the development of bilateral and multilateral treaties, and, finally, analyses the operation of the principle in international courts and tribunals. The reasoning and larger questions presented by the book will bring fresh insights to researchers and practitioners undertaking any international law project.
Introduction
Authors: McLachlan KC Campbell
Published: August 2024

Chapter 1 introduces the book’s central propositions. This chapter argues that the principle of systemic integration performs a pivotal role in a legal system that is constituted through a discursive process of legal reasoning, which builds relationships of coherence between legal rules, without which those rules could have neither life nor meaning. Such a system is premised on State consent, yet requires the identification of, and reference to, general principles of law. The principle demonstrates the capacity of international law to accommodate radically competing priorities about public goods in their application to specific cases, and to respond to change.
Ideas of Interaction
Authors: McLachlan KC Campbell
Published: August 2024

Chapter 2 addresses the concept of international law as a legal system. It argues that a contemporary conception of international law must be based upon an understanding of the multilateral treaty as the system-constitutive instrument. It considers completeness, unity, and stability as three aspects of systematicity advanced by jurists. The chapter answers theories of rule interaction based on a conflict of regimes and pluralism, finding that coherence—the manner in which norms and principles interlock—best captures the systemic qualities of international law. It demonstrates that the International Law Commission ultimately recognized this when it adopted the text of Article 31(3)(c) of Vienna Convention on the Law of Treaties.
Integration in Legal Process
Authors: McLachlan KC Campbell
Published: August 2024

Chapter 3 considers the practical operation of systemic integration in the process of legal reasoning aimed at resolving an international law dispute. It begins by elucidating the distinction between the jurisdiction of an international court or tribunal and the content of the applicable international law. This chapter then examines how to determine which particular rules of international law are applicable, considering the relation between treaty and custom, successive treaties on the same subject matter, and peremptory norms. Finally, it addresses the construction of Article 31(3)(c) of Vienna Convention on the Law of Treaties itself in the interpretation of treaties.
Bilateral Treaties
Authors: McLachlan KC Campbell
Published: August 2024

Chapter 4 focuses on the evidence for systemic integration in State practice in the framing and adoption of bilateral treaties. It demonstrates that, rather than leading to fragmentation, the conclusion of bilateral treaties promotes systematicity through States’ long-established and widespread practice of drafting and using model treaties in their cooperative relations. Tracing the genesis of model treaties to the first friendship treaty prepared on the foundation of the United States as an independent republic, it examines the development of model treaty-making through the 19th and 20th centuries in key fields such as extradition and tax. It tests the systemic impacts of model bilateral treaties through a comparison of the contemporary experience in investment and mutual assistance in criminal matters. It shows that bilateral treaty-making is frequently enmeshed with multilateral treaties in ways that are mutually reinforcing.
Judicial Integration
Authors: McLachlan KC Campbell
Published: August 2024

Chapter 6 considers the techniques that facilitate decisional integration between international courts and tribunals. It addresses two related but distinct legal processes. The first relates to the treatment of claims that overlap as a matter of fact. It evaluates the techniques available in international law to address issues of litispendence and related claims. The second relates to the treatment of claims that overlap as a matter of law. It considers the status of the judicial decisions of other international courts and tribunals as a subsidiary means for the determination of rules of law under Article 38(1)(d) of the Statute of the International Court of Justice.
The Applicable Law of Trade and Investment
Authors: McLachlan KC Campbell
Published: August 2024

Chapter 8 appraises the contribution of the principle of systemic integration to the determination by international tribunals of the law applicable to trade and investment. It assesses the significance of reference to other rules of international law in the case law of the Dispute Settlement Body of the World Trade Organization and in international arbitral awards determining investment treaty disputes. It finds such reference to be pervasive and essential to the function of fairly determining the parties’ dispute. This chapter addresses the role of custom and general principles of law, and of other relevant treaty rules applicable in the relations between the parties.
Conclusion
Authors: McLachlan KC Campbell
Published: August 2024

Chapter 9 concludes with an overall assessment of the function of the principle of systemic integration: both as a tool of practical reasoning and in light its implications for international law as a legal system, considering the existential challenges facing the international community. It distils the work’s key propositions of law about the principle’s operation: as part of a process to resolve legal disputes, in treaty drafting, and in treaty interpretation. This chapter argues that the substantial body of rules and principles of international law that States have created can only operate effectively as integrated parts of a coherent system.
Legal Opinions
Authors: Paterson Sarah , Zakrzewski Rafal
Published: August 2024

Chapter 8 concerns the use of legal opinions in financial transactions.
Jurisdiction
Authors: Ryngaert Cedric , van der Wilt Harmen , Vara Juan Santos
Published: August 2024

This chapter examines the role played by domestic courts in the further development of the international law of jurisdiction. The law of jurisdiction has been developed in particular in criminal law and, to a lesser extent, in economic law (including antitrust and competition law). The chapter first considers a number of recent criminal cases, focusing on the contentious universality principle but also looking at two cases that gave an expansive interpretation to the territoriality and personality principles. It then discusses the reach of states’ economic laws, which are interpreted to be subject to public international law rules of jurisdiction developed in the field of criminal law. The cases reviewed show that domestic courts are often reluctant to review the reach of domestic law in light of the international law of jurisdiction, and that they may embark on justificatory analysis in case domestic law is in accordance with international law.
International Organizations
Authors: Reinisch August , Novak Gregor
Published: August 2024

This chapter examines how domestic courts have addressed issues relating to the legal personality, privileges and immunities as well as responsibility of international organizations. Various issues concerning international organizations, including their treaty-making powers, are intrinsically related to the international nature of their legal personality. However, there is a growing number of situations in which international organizations need to act as subjects of domestic law. The chapter first provides an overview of the domestic legal personality of international organizations before discussing the sources and scope of their immunities, the tension between immunities and the right of access to justice, and the question of attribution of internationally wrongful conduct to and the responsibility of international organizations. A number of domestic court cases involving international organizations are reviewed to highlight the diversity of the sources of the institutional law of international organizations, as well as the various traditions of incorporating international law into the domestic legal order.
Customary International Law
Authors: Hamster Jorian
Published: August 2024

This chapter examines how domestic courts apply and develop customary international law by reviewing various cases chosen from jurisdictions all over the world. It first considers the methodology used by domestic courts in determining customary international law, taking into account the constitutive elements of customary international law and how broad norms of customary international law are interpreted. It then describes the role of domestic courts as agents in the development and even creation of customary international law, along with the progressive reasoning they use. In particular, it analyses the issue of state practice and opinio juris and the notion of ‘emerging custom’. All these cases at least show that domestic courts are willing to engage in difficult questions of international law.
Soft Law
Authors: Kanetake Machiko
Published: August 2024

This chapter examines how domestic courts give recognition, through their judicial reasoning, to soft law. The concept of soft law gives recognition to international normative standards which do not fall under the recognized sources of international law (conventions, custom, and the general principles of law). Within the context of the Oxford Reports on International Law in Domestic Courts (ILDC), soft law encompasses a range of standards which states consider that they ought to abide by and yet which may not fall under the three sources of international law. This chapter reviews a number of domestic court decisions selected primarily from the ILDC) to identify the kind of soft-law instruments invoked by domestic courts in their judicial reasoning, namely instruments of treaty monitoring bodies, instruments of a ‘conference of parties’, instruments of international organizations, and instruments adopted by inter-governmental forums.
Enforcement of Decisions of International Courts at the National Level
Authors: Ingadottir Thordis
Published: August 2024

This chapter examines how decisions made by international courts are enforced at the national level. The decisions of international courts require implementation at the national level, and address not only interests of states but also of individuals. Indeed, most of those judgments today come from human rights tribunals, followed by decisions of international criminal tribunals. The enforcement of decisions of international courts before domestic courts at the national level has raised a variety of issues, both regarding national and international law. This chapter reviews a number of ILDC cases that show how national courts have enforced judgments of the International Court of Justice (ICJ), international human rights courts (European Court of Human Rights and Inter-American Court of Human Rights), and international criminal tribunals (International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court).
International Responsibility
Authors: Janik Ralph
Published: August 2024

This chapter examines the role of domestic courts in the field of international responsibility. As organs of a state, domestic courts may themselves commit or condone an international wrong. On the other hand, they can halt or prevent internationally wrongful acts of their states by using harmonization or avoidance approaches. Indeed, domestic courts have in some cases expressly justified their reasoning and interpretation of international law to prevent their state from committing an international wrong. This chapter reviews a number of cases on responsibility dealing with issues such as the hierarchy between international and domestic law with regards to state responsibility, attribution, the question of aid and assistance, the responsibility of states and of international organizations, the plea of state necessity before domestic courts, extradition, and state succession.
Use of Force
Authors: Shucksmith Christy , White Nigel D
Published: August 2024

This chapter reviews domestic cases that address the legality or otherwise of the use of force by states—the jus ad bellum—including military actions undertaken in self-defence, or under United Nations Security Council authority, as well as more contested claims (for example, targeted killings). Two sets of cases are considered: those that amount to a direct challenge to the legality of the use of force by the government of the state, where the court’s major concern is whether it is willing and able to reach decisions on the legality of the use of force given its highly politicized nature; and those dealing with indirect challenge or review, where the legality of the war or use of force comes up as a defence or excuse for behaviour, or to support a claim of human rights abuse.
Terrorism
Authors: Constantinides Aristoteles
Published: August 2024

This chapter examines how domestic courts deal with questions relating to terrorism, focusing on decisions that bring to the fore the uncertainties surrounding the definition and scope of terrorism as well as cases that illustrate the difficulty of striking a balance between the need to combat terrorism effectively and the need to uphold (international) human rights standards while doing so. These cases show how domestic courts in various parts of the world have responded to the attempts by the legislature and the executive to circumvent human rights during the ‘war on terror’. The focus is on cases involving the prohibition of torture and non-refoulement as well as the rights to liberty and fair trial. Several of these decisions, especially by domestic courts in Europe, also emphasize the relationship between the case law of domestic courts and that of supranational courts or treaty bodies confronted with the same issues.
Substantive International Criminal Law
Authors: van der Wilt Harmen , Barker J Craig , Myers Bea
Published: August 2024

This chapter considers the application and interpretation of substantive international criminal law in domestic courts. It first reviews cases that address hierarchical relations between the national and international legal order, in connection with the nullum crimen sine lege principle, before analysing decisions dealing with substantive international criminal law as applied and interpreted in domestic courts. The discussion focuses on the core crimes of genocide, crimes against humanity, and war crimes as defined in the Statute of the International Criminal Court (ICC). It also explores the issue of complementarity, addressed in Article 17 of the Rome Statute of the ICC. The available case law shows that some national courts are willing to apply (customary) international law freely in order to fill the gaps in national legislation, whereas others are far more reluctant to engage in such an exercise so as not to undermine the nullum crimen sine lege principle.
Amnesties
Authors: Martin Claudia
Published: August 2024

This chapter focuses on amnesty laws in Latin America and the principles of accountability developed by the Inter-American Commission and the Inter-American Court of Human Rights. It first considers the jurisprudence of the Inter-American system on amnesty laws before discussing the interaction between the international and domestic courts in applying the principles of accountability. In particular, it reviews cases dealing with the permanent nature of the crime of forced disappearance; the direct application of international human rights law by domestic courts; the application of international humanitarian law and the grave breaches provisions; gross human rights violations as crimes against humanity under customary law and the jus cogens obligation to prosecute them; the duty to investigate and prosecute in cases of ‘fraudulent res judicata’; and the duty to investigate and prosecute and the proportionality of the punishment.
Economic and Social Rights
Authors: Constantinides Aristoteles
Published: August 2024

This chapter reviews cases that show how domestic courts determine and enforce international legal rules on social and economic rights. It begins with cases relating to the legal nature and scope of state obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) in the context of claims for the violation of specific rights recognized in the covenant. It then considers case law dealing with specific economic and social rights, including the right to education, the right to health, the right to social security, the right to adequate standard of living, and the right to work, labour rights, and trade union rights. These cases illustrate the steady shift in international and comparative law during the last decades towards an ever-growing acceptance of the justiciability of socio-economic rights.
The Distinction between International and Non-International Armed Conflicts
Authors: Hill-Cawthorne Lawrence
Published: August 2024

This chapter examines the history of, as well as the reasons for and against, the distinction drawn in international law between international and non-international armed conflict. It examines the context of the central enquiry of this book, as the differentiated approach to detention in international and non-international armed conflict arises from this general distinction between the two categories of armed conflict. It first demonstrates that the historical basis of the distinction lies in international law’s traditionally inter-state focus, noting that over time the distinction has been partially eliminated. It then examines the two principal lines of critique often made towards the distinction. It then considers the main reasons for preserving what remains of the distinction, including both sovereignty and humanitarian concerns. This will help in the final chapter of the book when considering whether the distinction should continue to exist with regard to detention.
Detention under IHRL
Authors: Hill-Cawthorne Lawrence
Published: August 2024

This chapter examines the procedural rules applicable to detention under international human rights law (IHRL). It first demonstrates that IHRL, as a body of law, prima facie applies in any situation, including international and non-international armed conflict. It then examines the procedural rules applicable to detention under the principal international and regional human rights treaties, as developed in jurisprudence. Finally it offers an assessment of the state of customary international law here and, in particular, the degree to which those treaty rules have crystallized as custom. It is shown that the basic arbitrary detention prohibition, together with the requirement of release where the reasons cease, are clearly custom. However, the customary nature of the other procedural rules is more controversial.
Detention and the Relationship between IHL and IHRL
Authors: Hill-Cawthorne Lawrence
Published: August 2024

This chapter explores the fundamental question of how the relationship between international humanitarian law (IHL) and international human rights law (IHRL) in the context of detention is to be understood. It begins with a general discussion of the relationship between IHL and IHRL, offering an original perspective that is firmly grounded in general international law principles of treaty interpretation. This is then applied to the rules on detention, looking first at detention in international armed conflicts to consider the various interpretive possibilities open to us. It then moves on to the central enquiry of this book, that is, detention in non-international armed conflict, exploring, in detail, state practice in specific non-international armed conflicts. It is shown that states remain bound in full by their human rights treaty obligations, alongside the minimal rules of IHL explored in chapter 3, when detaining in the context of non-international armed conflicts.
The Practical Application of IHRL to Detention in Non-International Armed Conflict
Authors: Hill-Cawthorne Lawrence
Published: August 2024

Chapter 5 demonstrated that the international human rights law (IHRL) rules on detention fully apply to detentions in relation to non-international armed conflicts. This chapter explores their practical application, focusing on how far derogation from these rules is permissible and the extent to which they might be ‘read down’ without derogating. In doing so, it examines comprehensively the relevant human rights treaty body jurisprudence. The divergent approaches of the treaty bodies are demonstrated, with a principled proposal offered for reconciling them. Two remaining issues are then considered for the applicability of the IHRL rules on detention in non-international conflicts: their extraterritorial application and their binding nature for non-state armed groups. It is shown that states continue to be bound by these rules in military operations abroad, but that the human rights treaty rules on detention do not bind non-state armed groups, revealing a key shortcoming with the existing law.
Conclusion
Authors: Hill-Cawthorne Lawrence
Published: August 2024

This chapter makes proposals for developing the law on detention in non-international armed conflict, in a manner that builds upon rather than replaces the existing law. It is argued that this is more appropriate than simply eliminating the distinction between international and non-international conflicts in this area. The proposed internment regime analogizes to and builds on the rules applicable to civilian internment in international armed conflicts. The proposed regime would apply ‘through’ the existing human rights law obligations of states and non-state groups. Thus, for states parties to the key human rights treaties, derogation would be necessary to access certain elements of the proposed internment regime, such as non-judicial review. This ensures that a more permissive detention regime could only be used where it is strictly necessary to do so, rather than simply where the threshold for a non-international armed conflict is met.
Market Abuse Regulation
Authors: Swan Edward J , Virgo John
Published: August 2024

This book provides a wide-ranging and insightful analysis of the market abuse regime and the applications of the regulations in the UK and EU. It provides detailed discussion of the implementation and interpretation of the regulation, the conduct of investigations, the defences and appeals available against a finding of market abuse, and overlapping US regulation. This new edition explains and evaluates the changes introduced by the Markets in Financial Instruments Directive and the Market Abuse Directive, the UK Financial Services Act 2012 and the implementation of the Regulation on Wholesale Market Integrity and Transparency, which have resulted in dramatic expansion of the coverage of EU market abuse regulation. It addresses the regulation of additional financial instruments, the expansion to include new markets and trading facilities, and changes to the coverage of commodity derivatives and physical commodities. The book discusses the dramatic changes to the format of regulation as a result of the restructuring of UK regulators; as well as the addition of new EU supervisory bodies with revised powers over national regulation within the EU. Beyond the EU, it discusses international protocols and treaties which have also added to the regulatory structure.
Evolving Regulation
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter begins with a background on financial services regulation in the UK. The principal responsibility for regulating financial market conduct generally, and for preventing, investigating, and punishing market abuse falls on the Financial Conduct Authority (FCA). The aims of the FCA are both to preserve financial stability and the expection that it will remain stable. One of the principal ways that this is done is by preventing what is called ‘market abuse’, which can generally be described as improper market behaviour, such as: insider trading; various techniques of market manipulation; and any other behaviour interfering with the fair and efficient operation of financial markets. The remainder of the chapter discusses the evolution of market abuse regulation; the adoption and implementation in the UK of the new EU Market Abuse and Insider Trading Directive, the Market Abuse Regulation, and for wholesale energy markets, the REMIT, international complications, and other levels of uncertainty.
Insider Dealing
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter examines what constitutes insider information, covering insider dealing under the Market Abuse Regulation; definition of inside information; case examples on inside information; financial instruments; and energy, emission allowances, and other commodity-related derivatives. Insider dealing has been the variety of market abuse that has been most enthusiastically prosecuted by the market regulators to date. A large percentage of the penalties that have been imposed for market abuse have been in insider dealing cases. This is because the nature of insider dealing leaves a relatively clear paper record of the transactions that constituted the transactions in question. Consequently, it is not that difficult for the Financial Conduct Authority to assemble clear proof that an insider has engaged in, or assisted, improper trading.
Market Manipulation
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter discusses market manipulation, the second general type of activity which constitutes market abuse under the Regulation. It covers manipulative behaviour, accepted market practices, indicators of manipulation, and the Financial Conduct Authority (FCA) on market manipulation. Prohibition of both market manipulation, and the brand-new offense of attempted market manipulation, is found in Article 15 of the Regulation, which states: A person shall not engage in or attempt to engage in market manipulation. Market manipulation is a complex category of market abuse that makes difficult to prove, and therefore difficult to punish. Unusual changes to market prices can have many causes. It is not easy to show that any particular change was a result of any particular factor. However, the FCA has other regulatory tools at its disposal to avoid the difficulties that proving ‘market manipulation’ may present.
Scope of Coverage
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter discusses the reach of the market abuse regime, the products covered, the ‘markets’ covered, and geographical reach. The Code of Market Conduct covers a range of abuses not covered by existing criminal law and it applies to everyone who participates in, or whose conduct may have an effect on, the UK financial markets. Everyone is covered, whether regulated by the Financial Services Authority (FSA) or not, based in the UK or overseas, and whether a professional or retail investor. The FSA has reserved for itself a very wide band of flexibility in judging who, what, when, and where contributed to market abuse within its jurisdiction. Ultimately, the FSA's view of the reach of the market abuse regime may be tested in the courts, but, for now, it must be regarded as very long.
Judging Behaviour
Authors: Swan Edward J , Virgo John
Published: August 2024

Once the basic standards of behaviour required of market participants are known, market participants will still have questions about how their behaviour in the market will be compared to the prevailing standards of market behaviour. These questions will include: (a) Who is the person being judged? (b) What guides will they use to compare the conduct of the responsible actor against the behaviour expected of a market participant in the actor's position? (c) Who will be judge(s) of whether market misconduct occurred? The answers to these issues are not entirely obvious from the Market Abuse Regulation or the FCA Code of Market Conduct. This chapter will attempt to explain them in more detail.
Defences
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter discusses defences to allegations of market abuse. These consist of five basic types: (a) objections to personal or subject matter jurisdiction; (b) compliance with relevant regulatory rules; (c) being within an exemption; (d) evidential defences consisting of other factors indicating that behaviour did not constitute market abuse; and (e) the person in question is acting on behalf of a public authority with respect to: (i) monetary policies, (ii) exchange rate or public debt management policies; or (iii) foreign exchange reserves policies. The Financial Conduct Authority states that behaviour which conforms with article 5 of the Market Abuse Regulation or with a directly applicable EU regulation made under article 5 of the Market Abuse Regulation will not amount to market abuse.
Hearings and Appeals
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter focuses on the Financial Services and Markets Tribunal, Tribunal rules, and hearings. The Tribunals, Courts and Enforcement Act 2007 established a new tribunal structure comprising a First-tier Tribunal and an Upper Tribunal. Appeal functions of existing tribunals, including the former Financial Services and Markets Tribunal, were transferred to this structure and assigned to chambers within the new tribunals. The Tribunal has broad powers with respect to FCA (and PRA) disciplinary decisions. A reference to the Tribunal is not really an ‘appeal’. It is a new hearing on the issues before a new, and independent, forum. The Tribunal may consider any relevant evidence and may direct any decision which the Financial Conduct Authority could originally have made. In effect, the review undertaken by the Tribunal is by way of a hearing de novo
Criminal Law
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter considers the relationship of the market abuse regime to criminal law. The market abuse regime was not intended to replace existing criminal laws but conceived to work alongside them — while covering a wider range of activities. Indeed, the Financial Conduct Authority (FCA) is empowered to institute criminal proceedings for a range of offences and in respect of certain other offences arising under related legislation. Although this was not originally intended, the market abuse prohibitions are part of criminal law. Although the market abuse regime was originally created to provide the FCA with a flexible administrative remedy for market misconduct, the range of available enforcement options makes it legally impossible not to treat at least some market abuse cases as criminal proceedings.
Conclusions
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter presents some final thoughts. The UK and the EU have undeniably made a determined effort to install a flexible and effective regime to deter and punish market abuse. The very fact that the market abuse regime causes so much comment in the financial services industry is one measure of its success. It is not a simple regime. To many, it is worryingly complex and, with the introduction of EU anti-market abuse law and regulations, and the implementation of the EU Market Abuse Regulation in 2016, has become even more so. However, so is market abuse. To keep pace with the chameleon-like changeability of schemes to win unfair profits in the financial markets, the regulators need a significant degree of indeterminate flexibility.