bluuebunny/crossref_metadata_2025 huggingface dataset:
Derogation in time of emergency/Dérogation en cas d’état d’urgence
Authors: Schabas William A
Published: August 2024

This chapter presents Article 15 of the European Convention on Human Rights, which allows any High Contracting Party to derogate from its obligations under the Convention in time of war or other public emergency. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Limitation on use of restrictions on rights/Limitation de l’usage des restrictions aux droits
Authors: Schabas William A
Published: August 2024

This chapter presents Article 18 of the European Convention on Human Rights, which imposes a limitation on restrictions, declaring that ‘restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed’. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Plenary Court/Assemblée plénière
Authors: Schabas William A
Published: August 2024

This chapter presents Article 25 of the European Convention on Human Rights, which sets out the functions of the Plenary Court. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Single-judge formation, Committees, Chambers, and Grand Chamber/Formations de juge unique, comités, chambres et Grande Chambre
Authors: Schabas William A
Published: August 2024

This chapter presents Article 26 of the European Convention on Human Rights, which covers the judicial formations of the Court. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Relinquishment of jurisdiction to the Grand Chamber/Dessaisissement en faveur de la Grande Chambre
Authors: Schabas William A
Published: August 2024

This chapter presents Article 30 of the European Convention on Human Rights covering the relinquishment of cases to the Grand Chamber. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Friendly settlements/Règlements amiables
Authors: Schabas William A
Published: August 2024

This chapter presents Article 39 of the European Convention on Human Rights, which establishes the role of the Court in securing friendly settlements. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Binding force and execution of judgments/Force obligatoire et exécution des arrêts
Authors: Schabas William A
Published: August 2024

This chapter presents Article 46 of the European Convention on Human Rights, which deals with the enforcement of judgments of the Court. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Inquiries by the Secretary General/Enquêtes du Secrétaire Général
Authors: Schabas William A
Published: August 2024

This chapter presents Article 52 of the European Convention on Human Rights (ECHR), which authorizes the Secretary General of the Council of Europe to request a State Party to furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Protection of property/Protection de la propriété
Authors: Schabas William A
Published: August 2024

This chapter presents article 1 of Protocol 1 to the European Convention on Human Rights, which protects the right to peaceful enjoyment of possessions. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Prohibition of imprisonment for debt/Interdiction de l’emprisonnement pour dette
Authors: Schabas William A
Published: August 2024

This chapter presents article 1 of Protocol 4 to the European Convention on Human Rights, which prohibits imprisonment for debt. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Prohibition of expulsion of nationals/Interdiction de l’expulsion des nationaux
Authors: Schabas William A
Published: August 2024

This chapter presents article 3 of Protocol 4 to the European Convention on Human Rights, which prohibits the expulsion of nationals. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Preamble/Préambule
Authors: Schabas William A
Published: August 2024

This chapter presents the Preamble of Protocol 6 to the European Convention on Human Rights. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Death penalty in time of war/Peine de mort en temps de guerre
Authors: Schabas William A
Published: August 2024

This chapter presents article 2 of Protocol 6 to the European Convention on Human Rights, which sets out the sole exception to the principle of abolition stated in article 1 of Protocol No. 6: A state may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Entry into force/Entrée en vigueur
Authors: Schabas William A
Published: August 2024

This chapter presents article 9 of Protocol 7 to the European Convention on Human Rights, which sets out the entry into force of the Protocol. It includes a brief commentary.
Prohibition of reservations/Interdiction de réserves
Authors: Schabas William A
Published: August 2024

This chapter presents article 3 of Protocol 13 to the European Convention on Human Rights, which prohibits reservation made under Article 57 of the Convention in respect of the provisions of this Protocol. It includes a brief commentary.
Territorial application/Application territoriale
Authors: Schabas William A
Published: August 2024

This chapter presents article 4 of Protocol 13 to the European Convention on Human Rights, which deals with the territorial application of this Protocol. It includes a brief commentary.
[Signature and ratification]
Authors: Schabas William A
Published: August 2024

This chapter presents article 9 of Protocol 16 to the European Convention on Human Rights, which deals with the signature and ratification of this Protocol. It includes a brief commentary.
Seat and Symbols of the Council of Europe
Authors: Klein Eckart
Published: August 2024

This chapter discusses the seat of the Council of Europe (CoE), as well as the establishment of its symbols and other institutional accoutrements. It also describes the function of these symbols and how they help to create an image of the European identity. Though the symbols have only an auxiliary effect on the European identity, they have nevertheless helped to create awareness of a common destiny. Thus the chapter looks at how the Council had arrived at its decision to use Strasbourg as its official seat, which is relevant for also determining the working places of its organs. While the seat and the issue of (official and working) languages was settled at the moment of or immediately after the foundation of the Council of Europe (CoE), the organisation needed some time to institute its specific symbols, emblem and flag (1955), Europe Day (1964), anthem (1972), and logo (1998).
Secretariat
Authors: Ruffert Matthias
Published: August 2024

This chapter examines the Council’s administrative organ, the secretariat, as well as its head, the Secretary General. The Secretary General is usually at the same time leading the administration of the organisation and bearing political functions. Thus the chapter discusses the appointment of the Secretary General, as well as their status, privileges, and immunities, before considering the organisation and its tasks as a whole. The Secretariat General is divided into several sub-units, with the Secretary General and the Deputy Secretary General being assisted in the execution of their functions by the Private Office of the Secretary General and the Deputy Secretary General. As the Secretariat provides secretarial functions for the CM and the PACE, respective secretarial units are created within it — the Secretariat of the Committee of Ministers (SecCM) to run the Ministers’ meetings, and the Secretariat of the Parliamentary Assembly.
Commissioner for Human Rights
Authors: Dörr Oliver
Published: August 2024

This chapter covers the background and activities of the Commissioner for Human Rights. The Commissioner for Human Rights of the Council of Europe (the Commissioner) is an independent, non-judicial institution set up in 1999 by a resolution of the Council of Ministers (CoM) with the explicit mandate to promote education in, awareness of, and respect for human rights, as embodied in the human rights instruments of the Council of Europe (CoE) (Article 1 paragraph 1 Resolution (99) 50). Since it has been established by one of the CoE main organs pursuant to its organisational powers (Article 16 CoE Statute) in order to pursue one of the purposes of the organisation (Article 1 (b) CoE Statute) by independent means, the Commissioner may be considered a (subsidiary) organ of the CoE. Its three main functions are, as stated above, education and information, monitoring, institutional cooperation. These functions are not mutually exclusive, but overlap each other.
The Administrative Tribunal
Authors: von Arnim Dorothee
Published: August 2024

This chapter is an examination of the Administrative Tribunal of the Council of Europe (the Tribunal), its functions, and its proceedings. The Tribunal safeguards the right of the organisation’s staff of access to a court in employment disputes. Concerning that right, and other fundamental rights relevant to employment relations, the Tribunal increasingly draws inspiration also from the European Convention of Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR), whose techniques of drafting and reasoning are similar to those of the Tribunal. Moreover, the Tribunal is composed of three judges and three deputy judges, with one judge and their deputy appointed by the ECtHR — the Tribunal’s Chair. The other two judges and two deputy judges are appointed by the Council of Ministers (CM).
European Centre for Global Interdependence and Solidarity (North–South Centre)
Authors: Kaltenborn Markus
Published: August 2024

This chapter looks at the organisation, mandate, and activities of the European Centre for Global Interdependence and Solidarity, or ‘North-South Centre’ (NSC) for short. The NSC was established within the context of development policy, in answer to an appeal for a greater solidarity and an equitable North-South relationship. In the Statute of the NSC, three organs are mentioned which deal with the North-South tasks of the Council of Europe (CoE). These are: the Executive Committee, the decisive organ; the Bureau, which is confronted with tasks regarding execution, monitoring, and reporting; and the Secretariat, which documents and prepares new programs and cooperation projects of the NSC. After an overview of the organisation as a whole, the chapter considers the new direction the NSC hopes to pursue.
European Centre for Modern Languages
Authors: McGonagle Tarlach
Published: August 2024

This chapter is about the European Centre for Modern Languages (the Centre), its history, objectives, structure, activities, and so on. The Centre is a Council of Europe (CoE) body based in Graz, Austria, and styled as an agent for reform in the teaching and learning of modern languages. Its founders’ ambition was for it to become ‘a fundamental instrument of cultural cooperation in Europe’. The Centre plays an important role in the CoE’s activities for the promotion of linguistic diversity and language learning in the field of education. In addition, these activities have been developed against the backdrop of the European Cultural Convention.
Protecting Children
Authors: Kilkelly Ursula
Published: August 2024

This chapter documents the work of the Council of Europe (CoE) in the area of children’s rights. In doing so, it considers the contribution made by the Council in this area, highlighting its principal achievements and the approaches used in this work. Its work is divided into three sections: the first section deals with the standard setting work of the CoE, which identifies the treaties and other instruments adopted by the CoE’s various bodies. The second section considers the establishment of the Children’s Rights Division and outlines the three strategies that have guided its work. The third section explains the mainstreaming of children’s rights undertaken by the Children’s Rights Division across the Council’s activities and functions, as well as the collaborative work undertaken with other international bodies. Finally, the chapter offers some concluding reflections on the contribution of the Council’s work on children’s rights.
Media and Information Society
Authors: Uerpmann-Wittzack Robert
Published: August 2024

This chapter concentrates on three landmark conventions on media and information technology: The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (‘Convention on Data Protection’, CDP), the European Convention on Transfrontier Television (CTT), and the Convention on Cybercrime (CCC). Moreover, recent activities with regard to internet governance are also considered. Other conventions and activities only plays a marginal role in this chapter. The final sections take a cross-sectional approach with regard to the abovementioned topics. These focus on institutional aspects; on evaluating the impact of Council of Europe (CoE) activities with regard to data protection, transfrontier television, and cybercrime; and on an assessment of the prospects of future CoE action with regard to the media and the information society.
The Council of Europe within the System of International Organisations
Authors: Schmahl Stefanie
Published: August 2024

This chapter analyses the inter-institutional role that the Council of Europe (CoE) plays within the system of international organisations. After all, since its foundation, the CoE is embedded in this larger system of international organisations. Thus the chapter elaborates on the CoE’s far-reaching fields of activities and its functional, substantive, and institutional meddling with other organisations. It subsequently analyses them in systematic terms in order to achieve a comprehensive approach of the CoE’s external ‘network activities’ within and outside Europe. By tracing and delimiting its role within the system of international organisations, the chapter further aims at giving a closer insight on the CoE’s contribution towards the shaping of a common framework of institutional international law.
The Applicability of the Conventions to ‘Transnational’ and ‘Mixed’ Conflicts
Authors: Milanovic Marko
Published: August 2024

This chapter addresses the unorthodox types of conflicts that do not clearly fit into the Geneva Conventions’ binary international armed conflict/non-international armed conflict (IAC/NIAC) mould. It begins with definitions and questions of terminology. It then briefly examines the transformative processes that can lead one type of conflict to mutate into the other, namely, the internationalization of NIACs and the internalization of IACs. Next, it looks at cross-border NIACs, i.e. NIACs which are not purely internal, and at mixed or hybrid conflicts in which an IAC and NIAC may exist in parallel. It concludes with a critical assessment of the current state of the law, including an appraisal of whether the existing IAC/NIAC binary is fit for purpose.
The Principle of Non-Discrimination
Authors: Rona Gabor , McGuire Robert J
Published: August 2024

This chapter discusses the principle of non-discrimination in the Geneva Conventions, covering its meaning and application, relevance in non-international armed conflicts, and legal consequences of a violation. Non-discrimination broadly stands for the proposition that humanitarian treatment in armed conflict, while necessarily differentiated, must never be denied without justification. The Geneva Conventions do not require identical treatment; differentiated treatment is acceptable, and even required, as long as it has a reasonable and objective basis. The Conventions codify this general, overarching obligation through two specific, legally operative types of obligations. In many instances, non-discrimination appears as a primary obligation, requiring parties to take action to prevent the occurrence of discrimination. More frequently, non-discrimination is a subsidiary obligation, a condition specifying that a party must satisfy its primary humanitarian obligations, such as caring for the wounded, without discrimination.
Rape and Other Sexual Violence
Authors: Viseur Sellers Patricia , Rosenthal Indira
Published: August 2024

This chapter examines the historical policy origins and modern scope of the application of the protection from rape and other forms of sexual violence under the Geneva Conventions (GCs). Reference is made to the relevant provisions, especially Article 27 paragraph 4 GC IV, as well as to Article 14 GC III and Common Article 3. Reference is also made to Additional Protocol (AP) I and AP II. The chapter discusses the fundamental guarantee under IHL of humane treatment as the underlying principle prohibiting all forms of sexual violence, and looks specifically at the prohibitions against rape, enforced prostitution and indecent assault under Article 27 paragraph 2. It briefly discusses the outdated approach found in the Geneva Conventions of linking protection of a woman’s honour with protection from sexual violence. The chapter also considers the legal consequences of violating the prohibitions against rape and other sexual attacks, including under the grave breaches regime, the criminalization of rape and other forms of sexual violence as offences within the jurisdiction of international criminal courts and tribunals, and the resolutions of the United Nations Security Council on Women, Peace and Security, which affirm the prohibition of sexual violence during armed conflict.
The Beneficiaries of the Rights Stemming from Common Article 3
Authors: Kleffner Jann K
Published: August 2024

This chapter discusses the protection of certain persons from a number of acts in non-international armed conflicts (NIACs) under Common Article 3 of the Four Geneva Conventions. The Article covers persons ‘taking no active part in the hostilities’, members of armed forces who have laid down their arms, and those placed hors de combat by sickness, wounds, detention, or any other cause. It also sets forth a number of fundamental obligations pertaining to the wounded, sick, and shipwrecked, namely to collect and care for them, and provides that impartial humanitarian bodies may offer their services to the parties to the conflict.
The Right of Initiative of the ICRC and Other Impartial Humanitarian Bodies
Authors: Nishat Nishat
Published: August 2024

This chapter discusses the meaning and application of the right of initiative under Common Article 3. The right of initiative traditionally refers to the right of impartial humanitarian organizations to offer their services to parties to a non-international armed conflict (NIAC), without such an offer being deemed interference in the internal affairs of the state in question. The International Committee of the Red Cross (ICRC) is cited by the provision as an example of such a body. The chapter also describes two (seemingly) contradictory trends emerging with regard to the services of humanitarian organizations in situations of NIAC which could shape the development of the right of initiative.
The Role of the International Committee of the Red Cross
Authors: Giladi Rotem , Ratner Steven R
Published: August 2024

This chapter discusses the role of the International Committee of the Red Cross (ICRC) in the implementation of the Geneva Conventions. It begins with a background on the ICRC, covering its history and structure, international legal status, and its impartiality, neutrality, and independence. It then details the ICRC’s functions under the Geneva Conventions, its methods for fostering compliance with international humanitarian law, and its relations with international criminal courts. The ICRC has repeatedly acted beyond its very limited textual mandate in the Conventions to take on significant responsibilities in their execution. Its unique modus operandi, centred on direct interactions with warring parties, has demonstrated some effectiveness, even as the confidentiality at its centre has proved controversial. Ultimately, the major role played by this unique NGO is evidence of an unwillingness of the Conventions’ parties to create and own a robust enforcement mechanism.
Protecting Powers
Authors: Kolb Robert
Published: August 2024

A Protecting Power is a neutral state or a state not party to an international armed conflict (IAC), which is nominated in order to safeguard the interests of one or more states parties to an international armed conflict, notably when direct diplomatic relations are severed, and to contribute to the control of implementation and respect for the applicable international humanitarian law (IHL). This chapter discusses the regulation of Protecting Powers in the Geneva Conventions. It covers the modalities of appointment of a Protecting Power, functions of the Protecting Power, and reasons for the decline of Protecting Powers. Furthermore, it discusses state practice with regard to the nomination of Protecting Powers and concludes by discussing whether the disuse of the institution of the Protecting Powers is likely to continue in the future.
The Interplay Between the Geneva Conventions and International Criminal Law
Authors: Gaeta Paola
Published: August 2024

This chapter focuses on the process of ‘individualization’ of the rules of the Geneva Convention through international criminal law (ICL). First, it examines to what extent the rules of the Geneva Conventions may constitute, and in fact have constituted, the basis for the identification of war crimes other than the grave breaches of the Geneva Conventions. Secondly, it analyses the application of modes of criminal liability for omission grounded on the violations of pertinent rules of the Geneva Conventions. This leads to a discussion of the possible ‘side effects’ of the expansion of the enforcement of the Geneva Conventions through ICL.
Evacuation and Transfer of Prisoners of War
Authors: Okimoto Keiichiro
Published: August 2024

This chapter discusses provisions on the evacuation and transfer of prisoners of war (POWs) laid down in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GC III). The GC III aims at minimizing the risk to POWs while they are being moved from one place to another. It makes a distinction between, on the one hand, the movement of POWs from the place of capture to a camp and, on the other hand, the movement of POWs from one camp to another. The former is dealt with in Articles 19 and 20 GC III, and the latter in Articles 46 to 48. The special case of transfers from one Detaining Power to another is provided for in Article 12 GC III. The chapter also considers the question of transfers of POWs to penitentiary establishments.
Treatment of Prisoners of War
Authors: Sanna Silvia
Published: August 2024

This chapter discusses provisions for the treatment of prisoners of war (POWs) laid down in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GC III). It covers the temporal applicability of the Convention’s safeguards; responsibility of the Detaining Power; fundamental rules for the treatment of POWs; conditions of captivity; relations with the detaining authorities; POWs’ labour and financial resources; and POWs’ contacts with the outside. It concludes that the body of rules for POW treatment enshrined in GC III consists of an extremely detailed regime, the correct and good faith application of which may genuinely contribute towards mitigating the suffering of the victims experiencing prolonged internment during armed conflicts, without overlooking the need to balance the interests and the real capabilities of the belligerent parties.
Release, Accommodation in Neutral Countries, and Repatriation of Prisoners of War
Authors: Sassòli Marco
Published: August 2024

This chapter discusses the rules governing the release, accommodation in neutral countries, and repatriation of prisoners of war (POWs). It covers repatriation and accommodation in neutral countries during hostilities; repatriation at the end of active hostilities; cases where repatriation at the end of active hostilities is not required; and status and treatment of prisoners of war who are not repatriated. Concerning the obligation to repatriate prisoners of war at the end of active hostilities, the determination of that point in time, the fact that this obligation is not subject to reciprocity, the relevance of objections and fears of prisoners of war to be repatriated, the destination of the repatriation, and practical arrangements and modalities are discussed. Finally, the relevance of the rules on repatriation of prisoners of war in non-international armed conflicts and particular legal consequences of an unlawful non-repatriation or repatriation of prisoners of war are discussed.
Judicial Guarantees
Authors: Akhavan Payam
Published: August 2024

This chapter discusses provisions for judicial guarantees under the Geneva Conventions. The Geneva Conventions do not contain a single consolidated provision listing all judicial guarantees applicable in armed conflict. Rather, they set out an elaborate system of guarantees, with rules applicable to various categories of protected persons, and further distinguish between international armed conflict (IAC) and non-international armed conflict (NIAC). Thus, international humanitarian law contains distinct provisions regulating penal proceedings as they relate to: prisoners of war, civilians, civilian internees, and parties to the conflict in NIAC. The chapter elaborates specific elements of these rules, which include the requirement of an ‘impartial’ and ‘regularly constituted court’, the requirement of individual criminal responsibility, and the principle of nullum crimen, nulla poena sine lege.
Treatment of Internees
Authors: Oswald Bruce , Iapichino Lucrezia
Published: August 2024

This chapter discusses provisions for the treatment of internees in Geneva Convention (GC) IV. Section IV GC IV consists of Articles 79–131, which are contained in 11 chapters that regulate: general concerns about internees; places of internment; food and clothing; hygiene and medical attention; religious, intellectual, and physical activities; personal property and financial resources; administration and discipline; relations with the exterior; plenary and disciplinary sanctions; transfers of internees; and deaths. There are a number of criminal violations that arise with mistreating detainees including torture; and wilfully causing great suffering or serious injury to the body or health of internees. In contemporary military operations there is general acceptance that the provisions in concerning the treatment of internees needs to be also viewed from the perspective of international human rights treaties such as the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment.
Law-Making and the Judicial Guarantees in Occupied Territories
Authors: Arai-Takahashi Yutaka
Published: August 2024

This chapter focuses on Article 64 of Geneva Convention (GC) IV, which gives the Occupying Power a broader ambit of legislative authority in occupied territories. In exceptional circumstances, the Occupying Power is not only allowed to change the laws in force, but is even bound to enact laws pursuant to the objective of giving effect to the obligations under GC IV. Such prescriptive power is recognized especially for the benefit of the local civilian population. The chapter analyses the extent to which Occupying Powers’ invocation of exceptional grounds allows them to exercise prescriptive powers under Article 64 GC IV. Specific issues are also examined, such as local administrations and judiciary in occupied territories, occupation courts, and the protection of refugees. The implications of the relevant rules of occupation to non-international armed conflict and the legal consequences of violations of the rules of occupation are also assessed.
The Administration of Occupied Territory
Authors: Bothe Michael
Published: August 2024

This chapter deals with the law of belligerent occupation. When the territory of an enemy belligerent is invaded in the course of an armed conflict, the establishment of de facto control triggers the application of the law of occupation. This means, inter alia, that the Occupying Power is responsible for ‘public order and safety’ in the occupied territory, among others, by establishing some kind of permanent set-up for its administration. The chapter assesses the legal issues involved in this type of territorial administration. International law must accommodate conflicting interests: the interests of the state whose territorial control has been displaced by a foreign army, at least for the time being, the interest of the Occupying Power, and the interests of the population which needs adequate living conditions and may be torn between the two states. The latter interest imposes on the Occupying Power a duty of good governance.
Protection of Private Property
Authors: Arai-Takahashi Yutaka
Published: August 2024

This chapter analyses the protection of property in occupied territories under Article 53 Geneva Convention (GC) IV, the prohibition of pillage under Article 33 paragraph 2, and the destruction and appropriation of property as a grave breach of GC IV under Article 147. It first delineates the scope of application of the general rule under Article 53, examining how the concept of military necessity operates as an exception to this rule. It considers those rules that regulate issues of confiscation, requisition, and seizure of private property, as well as the special international humanitarian law rules that address distinct categories of property. The two final sections address the extent to which those distinct rules analysed in international armed conflict may be considered relevant in non-international armed conflict; and the violations of those rules as grave breaches under Article 147 and other germane rules of international criminal law.
Prohibition of Settlements
Authors: Tomuschat Christian
Published: August 2024

This chapter examines Article 49 paragraph 6 Geneva Convention (GC) IV, which prohibits the Occupying Power from deporting or transferring parts of its own civilian population into the territory it occupies. It begins by describing population transfers during the Second World War. It then turns to two current conflict zones—occupied Palestinian territories and Northern Cyprus—where allegations have been raised that Article 49 paragraph 6 GC IV has been continuously violated over many years. Next, the chapter discusses meaning and application of Article 49 paragraph 6 GC IV, its relevance in non-international armed conflict (NIAC), and remedies for violations of Article 49 paragraph 6.
Shipbuilding Contracts and Termination Issues
Authors: Mandaraka-Sheppard Aleka
Published: August 2024

This chapter examines the parties’ rights and obligations stated in a shipbuilding contract, and the issues regarding the termination of a contract. It explains the basic principles of English law pertaining to shipbuilding contracts, emphasizing the most commonly used form, the Shipbuilders Association of Japan (SAJ) form. Like any other contract, there must be a binding agreement—an offer and an unconditional acceptance, the intention to create a legal relationship, and consideration. There must also be certainty of terms, which define clearly the extent of the duties of each party. The chapter discusses issues involving contract termination by the buyer and by the builder. For each issue, it compares the provisions stated in the SAJ form to the newly proposed new Standard Newbuilding Contract (NEWBUILDCON), which was developed to provide builders and buyers with an alternative choice of contract.
Transfer of Bill of Lading Contracts by Statute
Authors: Reynolds Francis
Published: August 2024

This chapter discusses the statutory transfer of bill of lading contracts in the event of the goods failing to arrive, arriving short, or arriving damaged. It provides an outline of the two solutions to this problem under UK common law—the Bills of Lading Act 1855 and the Carriage of Goods by Sea Act 1992. The Bills of Lading Act 1855 was enacted for the purposes of transmitting the whole contract of carriage to the receiver while at the same time retaining the shipper’s liability. This legislation, however, did not last as it faced numerous problems arising from the linkage of the transfer of the bill of lading to the transfer of property. In 1992 the UK then passed the Carriage of Goods by Sea Act which confers the right of suit to the ‘lawful holder’ of the bill.
Law of Wrecks
Authors: Griggs Patrick
Published: August 2024

This chapter delves into the legal recognition and status of wrecks. Under the UK Merchant Shipping Act 1894, a ‘wreck’ is defined as including jetsam, flotsam, lagan, and derelict in or on the shores of the sea or any tidal waters. Additionally, the Collins English Dictionary defines the term shipwreck as the partial or total destruction of a ship at sea, a wrecked ship, or part of such a ship. These definitions were critical in establishing the international framework regulating wrecks-the Nairobi International Convention on the Removal of Wrecks, 2007. The Convention provides uniform international rules to ensure prompt and effective locating, marking, and removal of a wreck when deemed to be hazard. The chapter describes some of the Articles of the Convention, such as the establishment of the Convention area and the rights and obligation of States Parties regarding wrecks.
Pollution from Seabed Activities
Authors: Pereira Ricardo
Published: August 2024

This chapter aims to assess the extent to which international law regulates pollution from offshore installations and crafts used in seabed activities. In particular, it aims to analyse the extent to which international law addresses liability and safety issues in the context of pollution from seabed activities; as well as to assess the case for a global treaty on safety and liability, whilst considering the existing regional initiatives in the field. Indeed, with the notable exception of the global regime for dumping and deep seabed mining, most safety and liability rules in the field of pollution from seabed activities have been adopted at the regional or national levels, often as a reaction to specific accidents.
The Rio Declaration on Environment and Development
Authors: Viñuales Jorge E
Published: August 2024

This preliminary study provides a detailed overall analysis of the Rio Declaration, its place in the history of global environmental governance, the travaux préparatoires leading to its adoption, the architecture of the instrument, and each one of its principles. The analysis of principles pays particular attention to their normative influence, mostly on subsequent treaties and soft law instruments, and to their jurisprudential relevance in international and domestic cases. The chapter concludes with some observations on the constitutional character of the Rio Declaration.
Principle 2
Authors: Duvic-Paoli Leslie-Anne , Viñuales Jorge E
Published: August 2024

This chapter analyses the rationale, travaux préparatoires, conceptual scope, and normative and jurisprudential influence of Principle 2 of the Rio Declaration. It pays particular attention to the reception of this principle in numerous treaties and soft law instruments as well as to its operation in international and domestic jurisprudence.
Principle 12
Authors: Young Margaret A
Published: August 2024

This chapter analyses the rationale, travaux préparatoires, conceptual scope, and normative and jurisprudential influence of Principle 12 of the Rio Declaration. It analyses in detail the four dimensions of the trade-environment link identified in Principle 12, paying particular attention to their impact on treaties and soft law instruments as well as to their operation in international jurisprudence.
Principle 23
Authors: Tignino Mara
Published: August 2024

This chapter analyses the rationale, travaux préparatoires, conceptual scope, and normative and jurisprudential relevance of Principle 23 of the Rio Declaration. It focuses on the situation of peoples under different forms of domination from the specific perspective of environmental protection.
The Principles of Extraterritorial Jurisdiction
Authors: Ryngaert Cedric
Published: August 2024

The territoriality principle serves as the basic principle of jurisdiction in international law. However, national laws may be given extraterritorial application provided that these laws could be justified by one of the recognized principles of extraterritorial jurisdiction under public international law: the active personality principle, the passive personality principle, the protective principle, or the universality principle. This chapter discusses how continental European and common law countries exercise extraterritorial jurisdiction. While the active personality and the protective principles are generally deemed uncontroversial, the opposite is true for the passive personality and the universality principles. In fact, the universality principle has recently gained a remarkable but contested ascendancy. The chapter determines whether the exercise of universal jurisdiction, that is the exercise of jurisdiction without a direct link to the forum State, is lawful under international law, and if so, what limits international law attaches to it.
The American Convention on Human Rights
Authors: Antkowiak Thomas M , Gonza Alejandra
Published: August 2024

This book offers a thorough and critical analysis of essential rights of the American Convention on Human Rights: the rights to equality, life, humane treatment, personal liberty, property, due process, and judicial protection, as well as the freedom of expression and reparations. To do so, it closely reviews the jurisprudence of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, the two institutions charged with interpreting the Convention, emphasizing the Court's binding decisions. The book examines this case law with a victim-centered lens—identifying key jurisprudential developments, discussing critical areas that lack consistency and rigor, and proposing alternative conceptual approaches. Each chapter generally consists of the following: (1) an Introduction to compare the American Convention right’s formulation with equivalent rights in other major international and regional treaties; (2) a Background section to consider the right’s negotiation history; (3) a Scope of Protection section to analyze the right’s provisions, paragraph by paragraph or topic by topic; and (4) a Limitations section, if applicable, to study any limitations to the right. The specific rights examined in the book were chosen because they have been the most developed by the Court and Commission. Also noteworthy, the book’s Introduction presents an up-to-date overview of the dynamic Inter-American System, outlining the System’s legal instruments, major institutions, significant impact, and key developments.
Equality
Authors: Antkowiak Thomas M , Gonza Alejandra
Published: August 2024

The Convention’s Article 24 establishes two critical, autonomous rights: the right to equality before the law and the right to equal protection of the law. The Inter-American Court has declared equality to constitute a jus cogens principle, which would render it binding for all States, and expanded State obligations in this area. The Court broadly condemns many forms of discrimination, and promotes affirmative action programs. However, its standards of review and even standards of proof for differential treatment remain uncertain. Further, the Court’s interpretation of Article 24 and Article 1, both as separate concepts and in relation to each other, has been inconsistent and, more recently, problematic. The Tribunal now considers Article 24’s scope to be more limited than that of the non-discrimination provision of Article 1(1). Among other objections, this approach conflicts with the Court’s prior jurisprudence, which in turn reflected international understandings of equality principles.
Humane Treatment
Authors: Antkowiak Thomas M , Gonza Alejandra
Published: August 2024

Whereas other instruments only listed prohibited forms of conduct, the Convention’s Article 5 was innovative for general human rights treaties because it established an autonomous right: “Every person has the right to have his physical, mental, and moral integrity respected.” Later, other treaties followed this example and declared rights to personal integrity and human dignity. Over the last two decades, the Inter-American Court—drawing from regional human rights instruments and the jurisprudence of the European Court and the Inter-American Commission—has delivered a number of authoritative decisions. These judgments have served to expand conceptions of torture and ill-treatment, broaden State obligations, condemn gender violence, and provide wide-ranging redress to victims. Nevertheless, the Court has not always been consistent in its approaches to Article 5, and more recently has shown a troubling reluctance to find torture and other violations in certain cases.
Due Process and Judicial Protection
Authors: Antkowiak Thomas M , Gonza Alejandra
Published: August 2024

Article 8, the Convention’s primary due process provision, is called “Right to a Fair Trial.” However, the Article goes far beyond trials and even judicial matters, regulating proceedings of “any public authority, whether administrative, legislative or judicial, which, through its decisions determines individual rights and obligations.” These broad protections have become more expansive still through numerous judgments of the Inter-American Court. The Convention’s Article 25, Right to Judicial Protection, primarily referred to amparo—a “simple and prompt” judicial recourse to protect “fundamental rights” recognized in either State law or in the American Convention, and includes the writ of habeas corpus. Yet the Court has expanded the remedies of Article 25 beyond amparo, and the Article’s full content has become unsettled. This owes, at least in part, to the Court’s frequent method of combining Articles 8 and 25 in its judgments; the practice has hindered the latter provision’s meticulous development.
Freedom of Expression
Authors: Antkowiak Thomas M , Gonza Alejandra
Published: August 2024

The Convention was designed to provide vibrant guarantees for the freedom of thought and expression. Among treaties, it contains the only prohibition against prior censorship and features an innovative provision on “indirect” restrictions to expression. Interpreting Article 13, the Court became the first international human rights tribunal to establish the right to access State-held information. The Court has issued several decisions that condemned censorship and disproportionate sanctions on expression, protecting the Article 13 rights of individuals and society at large. In 2008, however, the Court began to allow more constraints on expression and to require more responsibilities of speakers. We argue that the Court must change its recent approach and prohibit criminal sanctions on expression that are used by States to protect honor and reputation. The Tribunal also must develop clear definitions and rules concerning any sanctions on speech, with the goal to promote vigorous public debate.