bluuebunny/crossref_metadata_2025 huggingface dataset:
Libya v. Malta (Judgment of the International Court of Justice, 3 June 1985)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter presents the case concerned with the delimitation of the continental shelf boundary between the Libyan Arab Jamahiriya and the Republic of Malta in the Mediterranean Sea. In this case, Libya presented an argument for delimitation based on natural prolongation. The chapter outlines the various arguments put forward by both sides, and makes a number of interesting conclusions about the significance of this case. The Libya v. Malta Continental Shelf case was the first time the court had been requested to delimit a continental shelf boundary (or, indeed, any maritime boundary) between opposite coasts. It did so at a defining moment in the evolution of the international law of maritime delimitation, just a few years after the signature of the UN Convention on the Law of the Sea (UNCLOS). The judgment also marked an important development toward the establishment of equidistance as a first step in the maritime delimitation process.
Guinea-Bissau v. Senegal (Arbitral Award, 31 July 1989)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter concerns a case involving Guinea-Bissau and Sengal. Guinea-Bissau and Senegal are adjacent States situated on the Atlantic coast of West Africa. The maritime delimitation dispute between the parties of this case emerged after they had gained independence from the former colonial powers of France and Portugal. The Guinea-Bissau/Senegal case, this chapter concludes, is an early (and relatively little-cited) example of settlement of an international maritime boundary dispute by way of ad hoc arbitration. It is notable perhaps for its confirmation of the application of the principles of uti possidetis and intertemporal law in the context of post-colonial maritime boundaries and for the post-Award proceedings by which Guinea-Bissau attempted to have the International Court of Justice (ICJ) declare the Award inexistent, null, and void. From a practical perspective, the Guinea-Bissau/Senegal case, the chapter finally argues, highlights the importance of the clear and precise formulation of the question or questions to be posed to any court or tribunal.
Canada v. France (Award of the Arbitral Tribunal, 10 June 1992)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter starts by introducing the case, which concerned the delimitation of the maritime boundary between Canada and two islands, St Pierre and Miquelon, which collectively is described as a French ‘collectivité territoriale’ in the north-eastern Atlantic Ocean. The dispute dated back to 1966, when Canada and France exchanged notes verbales and aide mémoires stating their positions with regard to continental shelf delimitation following the issuance of hydrocarbon exploration permits by each party. The chapter argues that this was an unusual case involving delimitation between a group of small islands, on the one hand, and a large nearby continental State, on the other. The two sides were in a relationship of coastal adjacency with regard to the majority of the disputed area. The case provides an important precedent in the context of small islands situated adjacent to large continental landmasses and abutting open ocean areas. The chapter ends with some notes on developments since the Award.
Denmark v. Norway (Judgment of the International Court of Justice, 14 June 1993)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter examines a case which dealt with the delimitation of a maritime area located in the northern Atlantic Ocean between the east coast of Greenland and the island of Jan Mayen. The area lies to the north of Iceland and the Denmark Strait between Greenland and Iceland. This case pre-dated the entry into force of UNCLOS. This judgment represents an important step in the development and harmonization of modern international law related to the joint delimitation of continental shelf and water-column boundaries, illustrating that, even when the delimitation of the shelf and water-column is subject to different formal legal approaches, the practical methodology of delimitation and the final result are highly likely to be the same. A final notable feature of this case was the variable adjustment of the provisional median line throughout the length of the boundary, to reflect the fact that fisheries only constituted a special circumstance in the southern part of the disputed area.
Qatar v. Bahrain (Judgment of the International Court of Justice (Merits), 16 March 2001)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter describe a case which is concerned with the delimitation of the maritime boundary between Qatar and Bahrain in the southern part of the Arabian/Persian Gulf. The dispute combined land sovereignty and maritime delimitation aspects. The chapter considers the importance of the decision in this case for international law as a whole. The Qatar v. Bahrain judgment is perhaps best known for its treatment of islands, islets, shoals, and low-tide elevations and other small maritime features. This remains the most important practical aspect of the case today. The area of delimitation was littered with small features, particularly within the territorial sea areas. The size of many of those features changed substantially between high and low tide.
Newfoundland and Labrador v. Nova Scotia (Awards of the Tribunal in the First and Second Phases of an Arbitration Concerning Portions of the Limits of the Parties’ Respective Offshore Areas, Dated 17 May 2001 and 26 March 2002 Respectively)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case of this chapter was over a dispute between two Canadian provinces (the Province of Nova Scotia and the Province of Newfoundland and Labrador) over the boundary between their respective ‘offshore areas’ for the purposes of certain Canadian legislation. The delimitation was between the island of Newfoundland, on the one hand, and Cape Breton and the south-east portion of Nova Scotia’s mainland, on the other. The chapter argues that the Newfoundland and Labrador/Nova Scotia arbitration, while a sui generis case arising out of an inter-provincial Canadian dispute, has made a significant contribution to the development of the international law jurisprudence on maritime boundary delimitation. The case also provides an example of a tribunal constructing a true equidistance line at the first stage of the delimitation process, before the consideration of adjustment for relevant circumstances such as the presence and disproportionate effect of small islands.
Barbados v. Trinidad and Tobago (Award of the Arbitral Tribunal, 11 April 2006)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case presented here is concerned with the islands of Trinidad and Tobago, which lie off the north-eastern coast of South America. The island State of Barbados is to the north-east of Tobago. The parties had conducted negotiations concerning the use of resources (principally fisheries and hydrocarbons) in the maritime space between them over some three decades since the 1970s. The chapter concludes that the Barbados v. Trinidad and Tobago case was the first maritime delimitation dispute resolved by way of arbitration under Annex VII to UNCLOS. The entire proceeding lasted just over two years between the Barbadian Notice of Arbitration and the tribunal’s Award, demonstrating the expeditiousness with which arbitration proceedings can be completed if effectively managed.
Nicaragua v. Honduras (Judgment of the International Court of Justice, 8 October 2007)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The chapter begins with some historic information about this case, which concerned delimitation of the maritime boundary between Nicaragua and Honduras in the Caribbean Sea. Nicaragua and Honduras have adjacent coastlines, separated by the River Coco, and are located in the south-western part of the Caribbean Sea. The chapter discusses the case in detail and concludes by summarizing the significance of the decision for international law. The case is a leading modern example of the rejection of an equidistance/special circumstances approach to maritime delimitation in favour of an alternative methodology that was better suited to the highly unusual geographical and geomorphological context of the case. The court’s judgment is particularly notable in this respect since it followed a series of cases, stretching back more than a decade, in which both the court and arbitral tribunals had embraced the equidistance/special circumstances approach and the drawing of a provisional equidistance line as the first step in the delimitation of single-purpose maritime boundaries.
Romania v. Ukraine (Judgment of the International Court of Justice, 3 February 2009)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case discussed in this chapter is about the delimitation of the continental shelf and exclusive economic zone (EEZ) boundary between Romania and Ukraine in the north-western part of the Black Sea. The judgment, this chapter argues, confirms the so-called ‘three-stage approach’ as a standard methodology for EEZ and continental shelf delimitation under modern international law. The chapter also considers the court’s approach to the selection of base points for the construction of the provisional equidistance line. The judgment provides one of several modern examples illustrating the burden that must be met by States arguing for adjustment of an equidistance or median line.
Nicaragua v. Colombia (Judgment of the International Court of Justice, 19 November 2012)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case described in this chapter was over a dispute between Nicaragua and Colombia before the International Court of Justice (ICJ) over title to territory and maritime boundary delimitation in the Caribbean Sea. The dispute combined land sovereignty and maritime delimitation aspects. Nicaragua and Colombia had long attempted to settle their dispute in the Caribbean Sea. This case, the chapter argues, is significant both for its endorsement of the three-stage methodology normally applied by courts and tribunals in modern maritime delimitation disputes and for the peculiarities of the application of that methodology to the unusual geographical context with which the court was faced. The court adopted a resolute promotion of the three-stage methodology (equidistance/relevant circumstances/disproportionality test) in circumstances where the appropriateness of that methodology was, perhaps, not readily apparent. In doing so, the court confirmed the primacy of that three-stage methodology in modern international law.
The Creeping Subjectivity of Base-Point Selection: A Lurch toward a ‘Four-Stage Approach’ (or a Return to Equitable Principles)?
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter examines the noticeable move of international courts and tribunals, starting with the Black Sea case, toward the subjective selection of base points for the construction of a provisional equidistance line. These cases have moved away from the ‘geometrically objective’ exercise identified by those same courts and tribunals as being central to the first stage of the so-called three-stage approach. Pursuant to that approach, subjectivity should only enter into the delimitation process at the second (relevant circumstances) and third (disproportionality) stages. The chapter questions whether courts and tribunals are being faithful to the three-stage process and its underlying rationale. Or has there been a lurch toward a four-stage process, whereby the court or tribunal considers what are the ‘appropriate’ base points for construction of a provisional equidistance line, before proceeding to construct that line? Could it be said that the level of subjectivity employed by some recent courts and tribunals augurs a decisive move away from equidistance and a return to delimitation through the application of equitable principles?
Relevant Coasts, Relevant Areas, and Proportionality: Variances of Approach and a More Discrete Role for Proportionality in the Delimitation Process?
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

To date, courts and tribunals have taken some markedly different approaches to the identification of relevant coasts and relevant areas, both in framing the context of the dispute and in presenting (or rebutting) arguments for the adjustment of a provisional delimitation line. This means that the parties to many disputes have devoted considerable efforts to presenting their views about the relevant coasts and relevant areas in each case, to suit their own situation and case objectives and thereby maximize the prospects of a favourable result. This section discusses some of the most common issues in dispute, the different approaches taken, and the solutions adopted by courts and tribunals in identifying relevant coasts and areas.
International Climate Change Law
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This book provides an overview of the legal instruments and sources that govern the international response to climate change. Climate change is one of the fundamental challenges facing the world today, and is the cause of significant international concern. In response, states have created a legal regime, albeit a contested one, to address climate change and its impacts. The legal texts that comprise the climate regime — the United Nations Framework Convention on Climate Change, 1992, and its Kyoto Protocol, 1997 — are in force, have concrete content, and are binding. Resources are in place to facilitate the negotiation process, incentivise emissions reductions, and supervise and enforce compliance with the obligations imposed by these treaties. However, the language used in these international instruments is frequently intentionally vague. This book provides a clear guide to the legal regime applicable to climate change, demonstrating how the terms employed in the relevant instruments and conventions should be interpreted. The book begins by locating international climate change law within the broader context of international law and international environmental law. It considers the evolution of the international climate change regime, and the process of law-making that has led to it. It examines the key provisions of the Framework Convention and the Kyoto Protocol. It then analyses the principles that form part of the conceptual underpinning of the climate regime, as well as the elaborate institutional and governance architecture that has been created at successive international conferences. This assessment of the contours of the current regime is followed by a chapter devoted to the design of the post-2012 climate change regime, and trends indicated by the climate negotiations. The final two chapters address the relationship of international climate change law to regional and national climate change law, as well as its relationship with other areas of international regulation.
Climate Change and International Law
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter explores the key features of the broader legal landscape upon which international climate change law is anchored. It begins with a brief overview of the processes through which international legal norms are developed — the ‘sources’ of international law. The chapter then surveys the evolution of the main rules and principles of international environmental law relevant to climate change, as well as the scope and limitations of the rules and principles that apply between states. In considering the core rules of international environmental law, the chapter also canvasses the salient features and constraints of the law of state responsibility and touches upon the main dispute settlement forums available to states. Finally, the chapter traces the emergence of newer norms.
Treaty-Based Law-Making
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter is an overview of the basic concepts, processes and devices of treaty law. The Vienna Convention on the Law of Treaties (VCLT) defines ‘treaty’ as ‘an international agreement concluded between States in written form and governed by international law’. The basic rules of treaty law are codified in the VCLT, but are considered today to be universally binding as customary international law. Moreover, international law does not provide general rules to govern treaty negotiations, but certain common practices prevail in the pre-negotiation and negotiation phases, as this chapter shows. After the treaty negotiations, the chapter examines the next step — the adoption, signature, ratification, and entry into force of treaties, before looking at how treaty developments are effected.
Evolution of the United Nations Climate Regime
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter outlines the four phases in the development of the UN climate regime. The first was an agenda-setting phase, extending through 1990. The second was a constitutional phase, when the basic framework of the UN climate regime was put in place, beginning in 1991, when the UN General Assembly initiated negotiation of a framework convention on climate change, and continuing through 1994, when the United Nations Framework Convention on Climate Change (FCCC) entered into force. The third phase was regulatory, focusing on the negotiation, elaboration, and operationalization of the Kyoto Protocol, which required industrialized countries to reduce their emissions of carbon dioxide (CO2) and five other gases that contribute to the greenhouse effect. Finally, the period since 2005 has focused on what to do after 2012, when the Kyoto Protocol's first commitment period ended.
The Framework Convention on Climate Change
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter is an overview of the UN Framework Convention on Climate Change (FCCC). The FCCC established the governance structure and approach to differentiation for the international climate regime. As a framework convention, the FCCC aims to create a flexible system of governance for the climate change problem. It authorizes the Conference of the Parties (COP) to establish new institutions or change the mandate of existing ones. It allows amendments, annexes, and amendments to annexes to be approved by a three-quarters majority vote. In addition, it provides for regular reviews of its specific commitments on sources and sinks, as well as of the annexes, with a view to their possible amendment.
Kyoto Protocol
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter discusses the Kyoto Protocol in depth. The 1997 Kyoto Protocol supplements the framework laid out in the FCCC, by establishing internationally-negotiated, legally binding, quantitative emission targets for Annex I parties. Though the Kyoto Protocol was finalized and adopted in December 1997, many of its key provisions were skeletal in character and required further elaboration. It is also one of the most complex and ambitious environmental agreements ever negotiated, and has proven itself to be deeply controversial. The chapter first explores four overarching issues, cutting across the three instruments in the UN climate regime — the FCCC, the Kyoto Protocol and the Paris Agreement. It then provides a detailed analysis of the key provisions of the Kyoto Protocol.
Paris Agreement
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter details the 2015 Paris Agreement, its four overarching issues, and its key provisions. The Paris Agreement is a landmark in the UN climate negotiations. It sets an ambitious direction for the climate regime, and complements this direction with a set of common core obligations for all countries, including legally binding obligations of conduct in relation to parties' nationally determined mitigation contributions, and an expectation of progression over time. It also establishes a common transparency and accountability framework and an iterative process, in which parties take stock, every five years, of their collective progress and put forward emission reduction contributions for the next five-year period. The Paris Agreement, moreover, commands universal or near universal acceptance, and is applicable to all.
Intersections between International Climate Change Law and Other Areas of International Law
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This chapter maps the intersections between international climate change law and three areas of international law. Given the breadth of its causes and effects, the issue of climate change intersects with many areas of international law. And while there are other areas of intersection, the three topics considered in this chapter illustrate the crosscutting nature of climate change as an issue. These issues are: human rights law, the law relating to displacement and migration, and trade law. Each of them has given rise to significant scholarly debate and international practice, making them especially well-suited to exploring the interactions between international climate change law and international law more generally.
Conclusion
Authors: Bodansky Daniel , Brunnée Jutta , Rajamani Lavanya
Published: August 2024

This concluding chapter summarises the main points discussed in the previous chapters. It briefly maps out the long, winding road that has illustrated the formation and evolution of international climate change law. The chapter then provides some distinctive features of international climate change law — its managerial approach, its explicit articulation of common but differentiated responsibilities and respective capabilities as one of its guiding principles, its experimentation with legal form, and its polycentricity. To close, the chapter ponders on the effectiveness of international climate change law, as well as the difficulties in assessing the international response to climate change. Despite the optimism that pervaded international climate change law in 2015–2016, the chapter identifies other challenges, limitations, and areas of improvement in the current international climate change regime.
Treatise on International Criminal Law
Authors: Ambos Kai
Published: August 2024

Since the adoption of the Rome Statute of the International Criminal Court in 1998, international criminal law has rapidly grown in importance. This three-volume treatise on international criminal law presents a foundational and systematic analysis of the field. Taking into account the scholarly literature, not only sources written in English but also in French, German, Italian, Portuguese, and Spanish, the book draws on academic and practical work in international criminal law. This third volume offers an analysis of the procedures and implementation of international law by international criminal tribunals and the International Criminal Court. Through analysis of the framework of international criminal procedure, the text considers each stage in the process of proceedings before the ICC, including the role of legal participants, the scope of jurisdiction, and the enforcement of sentences. All volumes address the entirety of international criminal law, re-stating and re-examining the fundamental principles upon which it rests, the manner it is enacted, and the key issues that are shaping its future.
Role and Status of Legal Participants
Authors: Ambos Kai
Published: August 2024

This chapter defines the roles and status of the participants in international criminal proceedings. It outlines the duties, functions, and compositions of the judges and chambers (Pre-Trial, Trial, and Appeal), the Prosecutor and the Office of the Prosecutor (OTP), and the defence counsel. The chapter also discusses the rights of the defendant (suspect/accused), which are central in the procedural framework of the ICC, as well as their participation at trial. The victims—who were formerly passive actors in international court proceedings—have since been granted rights and provided with the status of legal subjects, and their enhanced participation and protection in court are also described in depth. Lastly, the chapter examines the role of the amici curiae—‘friends of the court’ in Latin—who act as independent participants providing experts’ information on relevant issues where their specific expertise is needed.
Appeal, Revision, and other Remedies
Authors: Ambos Kai
Published: August 2024

This chapter outlines the various legal remedies available in modern international criminal proceedings. The appeal is the ordinary remedy against a first instance judgment of acquittal or conviction with a view to correcting possible errors of fact and law (‘final appeal’); it can also be lodged against other decisions at the pre-trial or trial stage (‘interlocutory appeal’). In contrast to the appeal, the revision is an extraordinary remedy against a final judgment of conviction or sentence. In addition, there are other remedies with regard to prosecutorial investigation or prosecution decisions, procedural rights’ violations, and administrative decisions.
The Cooperation Regime
Authors: Ambos Kai
Published: August 2024

This chapter examines the cooperation rules between international criminal tribunals and the national jurisdictions. As with the inter-State regime of horizontal cooperation (mutual assistance), the cooperation with international criminal tribunals encompasses three areas: arrest and surrender of persons, other legal assistance, and execution of sentences and other decisions. There is a factual connection insofar as both arrest/surrender/other legal assistance and execution of sentences/other decisions concern the cooperation between States and the tribunals. The tribunals require the cooperation of States both in the investigation and adjudication phase as well as in the enforcement phase. As to the structure of cooperation, however, the cooperation in the area of enforcement seems less ‘vertical’ than the surrender of persons and the other legal assistance.
Enforcement of Sentences and Other Penalties
Authors: Ambos Kai
Published: August 2024

This chapter analyses the enforcement of sentences of imprisonment imposed by international criminal tribunals and courts, especially as opposed to the enforcement of fines and other financial measures. Article 77 of the Statute of the International Criminal Court (ICCS) provides for imprisonment as the main penalty, and fines and forfeiture of proceeds, property, and assets as additional (‘in addition’) penalties. Its division between deprivation of liberty and other, financial measures adds another layer to our understanding of the enforcement regime. Furthermore, the enforcement of sentences and other judicial decisions is—together with extradition and other legal assistance (especially regarding evidence gathering)—a fundamental part of interstate cooperation in criminal matters. As such, it operates, in essence, in a decentralized fashion through enforcement by (willing and able) States, although one may consider the international tribunals’ detention facilities (IDFs) as the nucleus of a centralized international enforcement or even an international penal system. National implementation by representative States is reviewed in this chapter.
Concluding Remarks
Authors: Ambos Kai
Published: August 2024

Fragmentation of models and systems is a feature in international criminal procedure. This concluding chapter proposes a procedural model as a broad general framework in international criminal procedure. It argues that such would leave enough room for its operators, especially the judges, to adjust the procedural rules to their daily procedural realities. The solutions for the relevant issues or the paths to come to these solutions are to be found independently of their inquisitorial or adversarial origin. Of course, a procedural ‘framework model’ needs some guiding principles and there are essentially two—fairness and efficiency/expediency. Understood correctly, these principles do not contradict but complement each other, for it is also in the interest of the suspect/accused that their legal situation is clarified as expedient as possible as long as this does not entail an unacceptable curtailment of their fair trial rights.
The Architecture of Global Migration Governance
Authors: Chetail Vincent
Published: August 2024

This chapter focuses on the impact of soft law on the overall architecture of global migration governance at the multilateral level. Global migration governance is now solidly anchored in the UN system, through it political organs, specialized agencies, and affiliated organizations. However, the vast number and great variety of its modules resemble a deconstructivist architecture, which traces its main features as a multi-level form of governance and the way to redress its most obvious shortcomings. The chapter first draws the overall institutional design of global migration governance, before analysing the main pillars and building blocks of this multifaceted, if not convoluted, architecture.
Treaty Interpretation
Authors: Gardiner Richard
Published: August 2024

This book explains the rules for interpretation of treaties and gives examples of their application in national and international jurisdictions. The rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties now apply to virtually all treaties which may be encountered in an international context and also within national legal systems where treaties have an impact on a large and growing range of matters. The rules of treaty interpretation differ somewhat from typical rules for interpreting legal instruments and legislation within national legal systems. Lawyers, and also some administrators, diplomats, and officials at international organizations, are increasingly likely to encounter issues of treaty interpretation which require not only knowledge of the relevant rules of interpretation, but also how these rules have been, and are to be, applied in practice. Now that the codified rules of treaty interpretation have been in force for some twenty-five years, there is a considerable body of case law on their application. This case law, combined with the history and analysis of the rules of treaty interpretation, provides a basis for understanding this most important task in the application of treaties internationally and within national systems of law. Any lawyer who ever has to consider international matters, and increasingly any lawyer whose work involves domestic legislation with any international connection, is at risk nowadays of encountering a treaty provision which requires interpretation, whether the treaty provision is explicitly in issue or is the source of the relevant domestic legislation. This book provides a guide to interpreting treaties properly in accordance with the modern rules.
A Single Set of Rules of Interpretation
Authors: Gardiner Richard
Published: August 2024

This chapter first sets out the book’s purpose, which is to explain the Vienna Convention on the Law of Treaties (Vienna rules) and its application. It then discusses the International Court of Justice’s (ICJ) gradual progression to affirmation of the Vienna rules; express endorsement of the Vienna rules by the ICJ; endorsement of the Vienna rules by other international courts and tribunals; endorsement of the Vienna rules by national courts; main terms and concepts which are used frequently in the book; the process of interpretation and the nature of the rules; and five examples of treaty interpretations.
Interpretative Material Generated in Making Treaties
Authors: Gardiner Richard
Published: August 2024

This chapter discusses elements of the treaty-making process that are relevant to treaty interpretation. It begins with a brief outline of the steps in making a treaty. It then explains the major components of that process and their products, and identifies links between those steps and relevant elements of the Vienna rules. Attention is given to recently completed work of the International Law Commission on reservations to treaties and to its work on interpretative declarations. The chapter is also important because it identifies preparatory work of treaties which constitutes an important supplementary means of interpretation considered in Chapter 8.
Who Uses the Vienna Convention to Interpret Treaties?
Authors: Gardiner Richard
Published: August 2024

This chapter focuses on the courts, tribunals, or other bodies that may provide materials which could assist in understanding the Vienna rules and its applications. These include international organizations, international courts and tribunals, and national legal systems. The factors that must be considered when using materials from these varied sources are discussed.
The General Rule: (2) Agreements as Context, Subsequent Agreements, and Subsequent Practice
Authors: Gardiner Richard
Published: August 2024

This chapter analyses further elements of the general rule for treaty interpretation under Article 31 of the Vienna Convention. It focuses on the notion of agreement between the parties on interpretation of a treaty. This is considered in two forms: first, a recorded agreement; and second, concordant practice of parties where this reveals their agreement on a point of interpretation. Such agreements, whether specifically entered into as agreements or established through practice of the parties, constitute a particularly significant element for interpretation of treaties being evidence of the parties’ understanding as to the meaning of their own agreement. A particular focus of the chapter is on the work in progress by the International Law Commission on subsequent agreements and subsequent practice in continuation of its study of treaties over time.
The General Rule:
Authors: Gardiner Richard
Published: August 2024

This chapter analyses the last two elements of the general rule for treaty interpretation under Article 31 of the Vienna Convention. Article 31(3)(c) deals with the circumstances in which rules from the broad sweep of international law may be brought into play in treaty interpretation. Article 31(4) addresses the situation where the interpretative exercise is narrowed by attribution by the parties of a particular meaning to a term of a treaty. The former identifies the circumstances in which the interpreter may use matter from the body of law outside the treaty. The latter narrows the focus to a particular or peculiar use of a term within the treaty, most readily indicated by a definition provision.
Supplementary Means of Interpretation
Authors: Gardiner Richard
Published: August 2024

This chapter discusses the use of all supplementary means of interpretation. These are supplementary to those in the general rule in article 31. However, their function is not dictated by the label ?supplementary? but by the terms of article 32.
Languages
Authors: Gardiner Richard
Published: August 2024

This chapter analyses interpretation of treaties authenticated in two or more languages under article 33 of the Vienna Convention. Case law specifically referring to the Vienna rules is relatively sparse on the roles languages in treaty interpretation even though comparison of terms in different languages has long been routine and has become even more necessary with the increasing number of treaties authenticated in multiple languages. Routine comparisons yield up few points of general guidance in application of the Vienna rules. Hence the preparatory work assumes a greater role in explaining the text of article 33.
Criticism, Themes, Issues, and Conclusions
Authors: Gardiner Richard
Published: August 2024

This chapter argues that the Vienna rules provide a framework for interpretative reasoning for all treaties, even if they only take the interpreter part of the way; that the more vague the wording of a treaty, the greater scope the interpreter has to exercise discretion; but that such exercise of discretion needs to be based on a full understanding of all the rules and must be carried out in good faith. The chapter pays particular attention to contemporary issues in treaty interpretation. These include the nature of ’evolutionary interpretation’, treaty interpretation in the particular contexts of international human rights law and international criminal law, and the problems of inconsistent interpretations in the growing body of case law relating to investment treaties.
The International Rules on National Criminal Jurisdiction
Authors: O’Keefe Roger
Published: August 2024

The chapter examines in detail the customary international rules on a state’s jurisdiction to prescribe and to enforce criminal law. A discussion of the famous ‘Lotus presumption’ leads into an account of the various accepted and asserted bases of prescriptive jurisdiction in the criminal context, followed by an indication of the absence of any hierarchy among these bases and a consideration of the applicability among different states of the principle ne bis in idem. The chapter then turns to enforcement jurisdiction in the criminal context, looking at the general rule and exceptions to it of the exclusivity of a state’s jurisdiction to enforce within its own territory, at the law and practice of extradition and mutual assistance in criminal matters, at some of the international legal implications of interstate abduction, and at the rules governing jurisdiction to enforce criminal law at sea.
The Types of Criminal Court
Authors: O’Keefe Roger
Published: August 2024

After prefatory terminological and conceptual clarifications, the chapter examines the basis for, and the international legal significance of, the formal juridical distinction between international and municipal (or ‘national’ or ‘domestic’) criminal courts, as well as the differences among international criminal courts when it comes to the legal underpinnings of their establishment and empowerment. It highlights how, for the purposes of international law, relatively little turns on the technical distinction between an international and a municipal criminal court and how of far greater international legal significance are the differing legal bases on which international criminal courts can be established and empowered. The chapter also suggests that what is more important in practical terms than the distinction between an international and a municipal criminal court are the differences as to jurisdiction ratione materiae, applicable law, rules of procedure and evidence, composition of the bench and its method of appointment, and so on, among international criminal courts and municipal criminal courts respectively.
Modes of Responsibility
Authors: O’Keefe Roger
Published: August 2024

The chapter examines the material and mental elements of the various accepted and asserted bases or ‘modes’ of criminal responsibility under customary international law, namely commission, including joint criminal enterprise (JCE) and co-perpetration, indirect perpetration, and indirect co-perpetration; planning; instigation; ordering; soliciting or inducing; aiding and abetting; contribution to a crime committed or attempted by a group of persons acting with a common purpose; conspiracy to commit the crime of genocide, direct and public incitement to commit the crime of genocide, and complicity in the crime of genocide; attempt; the specific modes of responsibility for the crime of aggression; and command and other superior responsibility.
The Obligations and Rights of States Parties
Authors: O’Keefe Roger
Published: August 2024

The chapter examines in detail the various obligations and rights in relation to their national criminal justice systems arising for states parties to the universal international criminal conventions. It considers the obligations common to all or most of the relevant treaties, among them municipal criminalization, provision for appropriate penalties, establishment of jurisdiction (including universal jurisdiction), prosecution or extradition (aut dedere aut judicare), and mutual assistance in criminal matters, before turning to the more significant of the obligations found in only some or one of these treaties, such as prevention of the offence, punishment of the offence, searching for suspects, and the exclusion of certain defences.
Immunity and Inviolability
Authors: O’Keefe Roger
Published: August 2024

The chapter outlines and analyses the scope of the immunity from foreign criminal jurisdiction and the inviolability from foreign measures of physical constraint, both generally and in relation to allegations of international crimes, from which a state may be entitled under international law to see its serving and former officials benefit. It begins by inquiring into the content of immunity and inviolability—in other words, precisely what judicial and executive measures are prohibited by the relevant international rules. It then considers in detail, first, the range of immunities ratione personae (chief among them diplomatic immunity and the respective immunities of heads of state, heads of government, and ministers for foreign affairs) and the attendant inviolability from which a small number of serving state officials benefit; and, secondly, the various immunities ratione materiae (foremost among them state immunity and consular immunity) from which serving and former state officials may benefit. In both contexts, the chapter examines closely the controversy over the grant to serving and former officials of foreign states of immunity from criminal jurisdiction in relation to allegations of international crimes.
Statutory Limitation and Amnesty
Authors: O’Keefe Roger
Published: August 2024

The chapter considers the questions of international criminal law and of general international law raised by the practices of statutory limitation and amnesty when the crime subject to limitation or amnesty is an international crime. It examines whether the state which provides, via limitation or amnesty, for partial or total impunity in respect of an international crime breaches any obligation it may have under either international criminal law or general international law. It also asks whether international criminal law or general international law prohibits a state from prosecuting an alleged perpetrator of an international crime covered in another state by a statute of limitations or amnesty.
The International Criminal Tribunals for the Former Yugoslavia and Rwanda and Their Residual Mechanism
Authors: O’Keefe Roger
Published: August 2024

The chapter focuses on the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and their residual Mechanism for International Criminal Tribunals (MICT), each of them established and empowered on an ad hoc basis via a decision taken by the UN Security Council under chapter VII of the UN Charter. The chapter starts by sketching the history and basic workings of the three courts before examining the international legality of their means of establishment. It next considers legal issues relating to the scope and exercise of the jurisdiction enjoyed by each court, the relationship of the courts to national criminal jurisdictions, and the relationship of the courts to the International Court of Justice. The chapter looks finally at the obligation on UN member states to co-operate with the courts, in particular through the surrender of suspects and the production of evidence, and the forcible measures authorized and taken in this connection in support of the Dayton Agreement.
The Basic Features of Investment Treaties
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: August 2024

Chapter 2 looks at the key principles contained in BITs and MITs. In its discussion of BIT key provisions it has sections on Preambles, Definitions, Admission, War Clauses, Free Transfer of Payments, Subrogation, State to State Disputes and Duration. All other issues are dealt with elsewhere in the book. The section on MITs considers similar provisions contained in NAFTA, the ASEAN Agreement and the Energy Charter Treaty. Issues which are unique to these treaties are addressed. The chapter concludes with a summary of issues relating to Foreign Investment Laws.
Investment
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: August 2024

The chapter begins with considering the definition of investment under the ICSID Convention, BITs and MITs. Having addressed the treaty framework, it examines the role played by treaty tribunals in building upon treaty definitions in relation to specific property interests. These are: timing issues, pre–contract investment, place of investment, the role played by the law of the host State in defining indirect investment (including minority shareholders' rights) and investment approval.
Expropriation
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: August 2024

By contrast with the rights discussed in Chapter 7, the protection of property rights in investments from expropriation has long been the subject of close consideration by arbitral tribunals. However, the factual matrix in which the modern expropriation claim arises may well be very different to the context of outright nationalization of foreign property, which characterised many of the earlier causes célèbres.

The chapter starts by looking at the classic definition and its modern elasticity. It considers both direct and indirect expropriation. It concludes by looking at the case–by–case approach of tribunals, in particular the criteria they consider and the governmental measures that may constitute expropriation.
Big Data and Competition Policy
Authors: Stucke Maurice , Grunes Allen
Published: August 2024

Big Data and Big Analytics are a big deal today. Big Data is playing a pivotal role in many companies’ strategic decision-making. Companies are striving to acquire a ‘data advantage’ over rivals. Data-driven mergers are increasing. These data-driven business strategies and mergers raise significant implications for privacy, consumer protection, and competition law. At the same time, European and United States’ competition authorities are beginning to consider the implications of a data-driven economy on competition policy. In 2015, the European Commission launched a competition inquiry into the e-commerce sector and issued a statement of objections in its Google investigation. The implications of Big Data on competition policy will likely be a part of the mix. This book offers a detailed description of the important new issue of Big Data and explains how it relates to competition laws and policy, both in the EU and US. The book helps bring the reader quickly up to speed on what is Big Data, its competitive implications, the competition authorities’ approach to data-driven mergers and business strategies, and their current approach’s strengths and weaknesses.
Introduction
Authors: Stucke Maurice E , Grunes Allen P
Published: August 2024

This introductory chapter briefly explores how Big Data and Big Analytics has affected both the US and EU economy. It highlights Big Data’s implications for competition policy by analysing competition law’s integral role in ensuring that people capture the benefits of a data-driven economy while mitigating its associated risks. As more companies undertake data-driven business strategies and mergers, competition officials and courts will likely confront the competitive implications of Big Data. The potential threat of Big Data is too significant to overlook or downplay data-driven mergers or the abuses of dominant companies built on data. The chapter examines the competition authorities’ approach to data-driven mergers and business strategies, and their current approach’s strengths and weaknesses.