bluuebunny/crossref_metadata_2025 huggingface dataset:
Classes of Heads of Mission
Authors: Denza Eileen
Published: June 2017

This chapter analyses Articles 14 and 15 of the Vienna Convention on Diplomatic Relations. Article 14 organizes the heads of the diplomatic of each respective State into three classes, namely: (a) that of ambassadors or nuncios (in the case of the Holy See) accredited to Heads of State and other heads of mission of equivalent rank; (b) that of envoys, ministers and internuncios accredited to Heads of State; and (c) that of chargés d’affaires accredited to Ministers for Foreign Affairs. The Article also makes it clear that there shall be no differentiation between heads of mission by reason of their class. Article 15 further concerns the classes of the heads of mission as it states that the classes to be assigned shall be agreed between the States. The chapter also looks into how the International Law Commission faced the concerns surrounding the classes leading up to the formation of both Articles.
Chargé d’affaires ad Interim
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 19 of the Vienna Convention on Diplomatic Relations which deals with the absence of the head of the diplomatic mission. The Article states that if the post of the head of mission is vacant, or if the head of the mission is unable to perform his duties, a chargé d’affaires ad interim (in charge of matters) shall act provisionally as the head of the mission. The chargé d’affaires ad interim shall be notified by either the head of the mission or by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other body as may be agreed. In addition, the Article also states that any member of the administrative and technical staff may, with consent of the receiving State, be designated by the sending State to be in charge of the mission if there is no member of the diplomatic staff present.
Assistance in obtaining Accommodation
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 21 of the Vienna Convention on Diplomatic Relations which deals with the assistance of the receiving State in giving accommodation to the members of the diplomatic mission of the sending State. The Article states that the receiving State shall either facilitate the acquisition of the premises necessary for its mission or assist members of the mission of the sending State in obtaining accommodation in some other way. Also, under the Article, the receiving State shall assist missions in obtaining suitable accommodation for their members where necessary. In essence, Article 21 ensures that diplomatic mission is not barred from acquiring premises adequate for its purposes in the receiving State. The chapter looks into domestic laws of sovereign States that also regulate the accommodation of foreign diplomats, such as the Foreign Missions Act enacted in the United States and the Diplomatic and Consular Premises Act 1987 in the United Kingdom.
Inviolability of the Mission Premises
Authors: Denza Eileen
Published: June 2017

This chapter looks into Article 22 of the Vienna Convention on Diplomatic Relations which deals with the inviolability of the diplomatic mission premises. The Article expresses that along with the premises of mission being inviolable, the agents of the receiving State may not enter them, except with the consent of the head of the mission. Under the Article, the receiving is under a special duty to take all appropriate measures to protect the premises of the mission and to prevent any disturbance of the peace of the mission or impairment of its dignity. Lastly, the Article states that the premises of the mission, their furnishings, and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment, or execution. The chapter stresses the legal concept of inviolability given to the premises of the diplomatic mission.
Exemption of Mission Premises from Taxation
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 23 of the Vienna Convention on Diplomatic Relations which deals with the exemption of the diplomatic mission premises from taxation. Article 23 states that the sending State and the head of the mission shall be exempt from all dues and taxes in respect of the premises of the mission. This exemption however shall not apply to dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission. This practice traces its roots from the nineteenth century when it was not based on diplomatic immunity but on courtesy. Many States concluded bilateral agreements or arrangements providing exemption—a practice which would have been unnecessary if customary international law had required it. During the twentieth century, general practice based on courtesy or on reciprocity began to harden into a customary rule requiring exemption from central and local taxes on mission property.
Freedom of Movement
Authors: Denza Eileen
Published: June 2017

This chapter analyses Article 26 of the Vienna Convention on Diplomatic Relations which tackles the freedom of movement granted to all members of the diplomatic mission. Article 26 states that the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory while being subject to its respective laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security. The freedom to travel within the territory of the receiving State is an essential facility to enable diplomatic agents to exercise two of their most important functions—protection of the nationals of the sending State and reporting to their government on conditions and developments in the receiving State.
The Diplomatic Bag
Authors: Denza Eileen
Published: June 2017

This chapter looks into Article 27.3 and Article 27.4 of the Vienna Convention on Diplomatic Relations. Both of the sections refer to the diplomat bag used by members of diplomatic missions. Article 27.3 states that the diplomatic bag shall not be opened or detained, while Article 27.4 states that the packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use. Given the vulnerability of communications sent by wireless, by telephone, or by correspondence through public facilities—described in the commentary on Article 27.1 and 27.2 and apparently increasing as technology advances and leaking meets with public sympathy—States attach prime importance to the security of the diplomatic bag for reliable transmission of confidential material.
Personal Inviolability
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 29 of the Vienna Convention on Diplomatic Relations which deals with personal inviolability of a diplomatic agent. The Article states that a diplomatic agent shall not be liable to any form of arrest or detention and that the receiving State shall treat him with due respect and shall take all steps to prevent any attack on his person, freedom, or dignity. In the Commentary on the draft article, the International Law Commission expressed that the diplomatic agent is exempted from certain measures that would amount to direct coercion. Personal inviolability precludes personal service of legal process on a diplomat or other entitled member of a diplomatic mission. Although service of process does not involve arrest or detention and does not in any real sense involve attack on the person, freedom, or dignity of the diplomat, it is a manifestation of the enforcement jurisdiction of the receiving State.
Exemption from Giving Evidence
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 31.2 of the Vienna Convention on Diplomatic Relations which states that a diplomatic agent is not obliged to give evidence as a witness during trial. Under customary international law a diplomat was immune from compulsion in regard to appearing or giving evidence as a witness but was probably not exempt from the legal obligation to do so if requested in proper terms. It should be noted that the exemption from the duty to give evidence is not limited by the exceptions to immunity from jurisdiction set out in Article 31.1(a), (b), and (c). It was emphasized that a diplomatic agent involved for whatever reason as plaintiff or as defendant in legal proceedings would always have a strong incentive to give evidence in order to win his case, but that the decision whether to permit him to do so should remain with the sending State.
Immunity from Execution
Authors: Denza Eileen
Published: June 2017

This chapter analyses Article 31.3 of the Vienna Convention on Diplomatic Relations which stresses the immunity from execution of the diplomatic agent. Article 31.3 states that no measures of execution may be taken in respect of a diplomatic agent except in cases regarding the sub-paragraphs (a), (b), and (c) of Article 31.1., and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. The principle of immunity from execution derives from the diplomat’s inviolability of person, residence, and property as well as from his immunity from civil jurisdiction. However, a diplomat’s residence may be vulnerable to execution if it is part of a larger block owned by the sending State and a judgment of a national court declares that the block as a whole is not exempt from execution.
Jurisdiction of the Sending State and other Remedies
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 31.4 of the Vienna Convention on Diplomatic Relations which deals with the jurisdiction of the sending State and other remedies. Under Article 31.4, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. Civil proceedings against a diplomat before the courts of the sending State do not usually provide a satisfactory remedy for a claimant in the receiving State. The first difficulty is that of serving process on the diplomat. While he remains at his post this cannot be done by the authorities of the receiving State because of his inviolability (as explained above under Article 29), and other methods of service such as letter or advertisement may not be adequate under the law of the sending State. The second difficulty is that of expense as the plaintiff will bear the costs instituting legal proceedings in a foreign country.
Waiver of Immunity
Authors: Denza Eileen
Published: June 2017

This chapter explores Article 32 of the Vienna Convention on Diplomatic Relations which highlights the waiver of immunity of diplomatic agents. According to Article 32, the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. In addition, the Article also states that the waiver sent must always be express and that the initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. Finally, the Article also states that waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.
Exemption from Social Security Provisions
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 33 of the Vienna Convention on Diplomatic Relations which deals with the exemption from social security provisions. The Article states that, subject to Article 33.3, a diplomatic agent shall exempt from social security provisions in the receiving State. This exemption shall also apply to private servants employed under the diplomatic agent, on condition: (a) that they are not nationals of or permanently resident in the receiving State; and (b) that they are covered by the social security provisions which may be in force in the sending State or a third State. In addition, the Article expresses that a diplomatic agent who employs persons to whom the exemption provided fordoes not apply shall observe social security obligations. Finally, the Article states that the exemption provided in Article 33.1 and 33.2 shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State, and that this Article shall not affect bilateral or multilateral agreements concerning social security.
Members of the Family of a Diplomatic Agent
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 37.1 of the Vienna Convention on Diplomatic Relations which addresses the family members of a diplomatic agent. The Article states that the members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36. This practice traces its roots back to the second half of the seventeenth century when permanent missions gradually replaced special missions as the normal form of representation, and diplomats would spend several years in a post. Diplomats would then to bring with him his immediate family as well as a retinue of servants to minister to his comforts and enhance his prestige. The rationale for extending privileges and immunities to the immediate families of diplomatic agents has remained largely unchallenged under the Convention regime as it is still followed today.
Junior Staff of the Mission and Private Servants
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 37.2 to 37.4 of the Vienna Convention on Diplomatic Relations which highlights the functions of the junior staff of the mission and private servants. Article 37.2 states that members of the administrative and technical staff of the diplomatic mission, together with members of their families, shall enjoy the privileges and immunities specified in Articles 29 to 35, except the immunity from civil and administrative jurisdiction of the receiving State specified in Article 31. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation. Article 37.3 then states that members of the service staff shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33. Lastly, Article 37.4 states that Private servants be exempt from dues and taxes on the emoluments they receive by reason of their employment.
Commencement of Privileges and Immunities
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 39.1 of the Vienna Convention on Diplomatic Relations which deals with the commencement of privileges and immunities given to members of the diplomatic mission of the sending State. The Article states that every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. This notion was based on the view that privileges and immunities began when the diplomat entered the territory of the receiving State and made his appointment known. The chapter also looks into numerous cases where a person has sought to rely on the apparent protection given by Article 39.1, using it to grant them immunity from jurisdiction.
Property of a Deceased Member of a Mission
Authors: Denza Eileen
Published: June 2017

This chapter explores Article 39.4 of the Vienna Convention on Diplomatic Relations which deals with the handling of the property of a deceased member of a diplomatic mission. The Article states that in the event of the death of a member of the mission who is not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
Duties of Third States
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 40 of the Vienna Convention on Diplomatic Relations which provides an outline of the duties of third states during diplomatic missions. The Article states that if a diplomatic agent, together with his family, passes through or is in the territory of a third State, the third State shall accord them inviolability and such other immunities as may be required to ensure their transit or return. The Article also states that in similar circumstances, the third State shall not hinder passage through their territories. Also, third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. Lastly, the Article states that the obligations of third States written in this Article shall also apply to the persons mentioned, and to official communications and diplomatic bags, whose presence in the territory of the third State is due to force majeure.
Duties of the Mission towards the Receiving State
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 41 of the Vienna Convention on Diplomatic Relations which provides an outline of the duties of the diplomatic mission towards receiving State. According to the Article, it is the duty of all of the members of the mission, without any prejudice, to enjoy such privileges and immunities and to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. The Article also states that all official business with the receiving State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. Lastly, the premises of the mission must not be used in any manner incompatible with the functions of the Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
Non-Discrimination and Reciprocity
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 47 of the Vienna Convention on Diplomatic Relations which deals with non-discrimination and reciprocity. The Article states that in the application of the provisions of the present Convention, the receiving State shall not discriminate as between States. However, discrimination shall not be regarded as taking place: (a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State; (b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention. Article 47 lays down a general duty of non-discrimination before setting out circumstances in which discrimination is deemed not to take place. The emphasis is therefore placed on non-discrimination and on the application in each State Party of a uniform regime for diplomatic missions.
Final Clauses
Authors: Denza Eileen
Published: June 2017

This chapter looks into Articles 48 to 53 of the Vienna Convention on Diplomatic Relations. Article 48 states that the Convention shall be open for signature by all States Members of the UN or any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention. Article 49 on the other hand states that the present Convention is subject to ratification, while Article 50 expresses that the Convention shall remain open for accession by any State. Article 51 enumerates the date of the enforcement of the ratifications submitted to the UN, and Article 52 states that the Secretary-General shall inform all States the deposit of instruments of ratification and the date of enforcement. Lastly, Article 53 states that the original texts of the Convention shall be deposited with the Secretary-General, who shall send certified copies thereof to all States.
Settlement of Disputes
Authors: Denza Eileen
Published: June 2017

This chapter considers the Optional Protocol concerning the Compulsory Settlement of Disputes as discussed in the Vienna Convention on Diplomatic Relations. As a general rule, disputes over the interpretation or application of the Convention must be resolved speedily by the Ministry of Foreign Affairs and other authorities of the receiving State in determining whether criminal proceedings may be brought, by national courts when diplomatic immunity is pleaded, or by governments in deciding on whether a member of mission should be recalled or more generally on the level at which they wish to maintain diplomatic relations. According to the protocol, disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.
The Foundations of International Investment Law
Authors: Salacuse Jeswald W
Published: June 2017

This chapter examines the state of customary international law governing international investments, that is, the law that exists in the absence of an applicable treaty. Following World War II, such law for most investors was incomplete, vague, contested, and without an effective enforcement mechanism, meaning that investors and their home governments needed to find another way to protect investments of their nationals. This would lie in negotiating investment treaties. Topics covered include state and investor interests shaping international investment law; the sources of international law; customary international law and general principles of law governing international investment; customary international law on expropriation and breach of state contracts; challenges to Western views on international investment law; and deficiencies of customary international law on investment.
Freedom from Coercion
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter addresses the relationship between article 18(2) and article 18(3) of the International Covenant on Civil and Political Rights (ICCPR). Article 18(2) states that no person shall be subject to coercion which would impair his or her freedom to have or to adopt a religion or belief of their choice. This provision for the forum internum does not allow for any compromise or limitation. By contrast, article 18(3) deals with possible limitations concerning manifestations of religion or belief in social life. However, the distinction in legal protection, as it is drawn between these two dimensions of freedom of religion or belief, should not be misconstrued as an abstract hierarchy or a fragmentation of two separate spheres. The unconditional prohibition of coercion in the forum internum enhances the status of freedom of religion or belief in all its dimensions.
Appointing Clergy
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter addresses the issues concerning State interference in the appointment of clergy in a religion. In practice, the existence of religious communities is maintained through the succession of new religious leaders, priests, and teachers. If a State systematically abducts, arrests, or imprisons religious leaders this may jeopardize the very survival of this community. Likewise, direct State interference in the appointment procedure of a religion may lead to divisions within communities and may weaken the relationship between different sub-groups. These interferences may include management measures for the recognition of ‘reincarnations’, which may result in disunity among religious members, with some believers following the State-appointed leader while others follow the leader who has not been officially recognized. Another issue of interpretation is whether the autonomy of religious communities in selecting and appointing their religious leaders can—or even must—be curtailed by the State in order to safeguard the equality between men and women.
The Liberty of Parents to Ensure the Religious and Moral Education of Their Children
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter examines the issues concerning the travaux préparatoires, general comments, and jurisprudence of the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights regarding the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions. This chapter notes that there are several ‘actors’—as rights holders and/or duty-bearers—whose rights, liberties, duties, and interests need to be considered and possibly reconciled in case of clashes, i.e. children, their parents (or when applicable legal guardians), the State, and religious communities. In terms of issues of interpretation, this chapter deals with the two opposite questions whether there is a right to remain uninfluenced by religious upbringing, and whether parental rights risk being eroded by recognizing rights of the child.
Registration
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter focuses on several issues concerning the registration of religious communities. While ‘registration’ may appear to be a merely technical theme of less political significance, the issue is actually a source of major human rights problems in the area of freedom of religion or belief. Quite a number of States assume that only members of ‘registered’ religious communities should be allowed to fully practise their freedom of religion or belief. Moreover, registration procedures are often overly bureaucratic, cumbersome, and thus not in the service of freedom of religion or belief. This chapter derives from the reports of Special Procedures a list of ‘do’s and don’ts’ for the formulation of registration laws and procedures concerning the acquisition of legal status. In terms of issues of interpretation, this chapter discusses misunderstandings with regard to the term ‘recognition’, which should be avoided in the context of registration procedures.
Communicate with Individuals and Communities on Religious Matters at the National and International Level
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter focuses on issues concerning the right to communicate on religious matters at the national and international level. Such communications not only encompass transmitting and receiving verbal or written religious messages, but also personal contacts, processions, and pilgrimages. At the domestic level, processions or parades may provoke violent clashes and public order problems, often leading the State authorities to ban or restrict such processions. Meanwhile, at the international level, religious communities and their pilgrimage sites are usually not confined to the territory of only one State, which naturally leads to the need for international communications and pilgrimages. This situation illustrates the overlap of the right to communicate in matters of religion also with the rights to disseminate publications and to teach a religion or belief. Issues of interpretation include the questions whether communications are also covered by this freedom if they are made for proselytizing purposes or if they involve transfrontier travels in order to attend a religious meeting or undertake a pilgrimage.
Discrimination on the Basis of Religion or Belief/Interreligious Discrimination/Tolerance
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter focuses on religious discrimination. Not only does freedom of religion or belief prohibit undue infringements into a person’s religious freedom; it also prohibits discrimination—the denial of equality and unfair treatment based on religion. The discussion on discrimination has become more and more complex in recent debate, both with a view to different types of actors (State institutions, de facto authorities, and non-State institutions) and to different forms of discrimination (direct, indirect, structural, intersectional). While many experiences of discrimination continue to be overt and recognizable, more sensitivity has also arisen concerning concealed forms of discrimination, such as indirect discrimination, sometimes hidden under seemingly neutral rules. Reasonable accommodation should be used to tackle these phenomena. Moreover the State bears the responsibility to address the root causes of intolerance, societal discrimination, and violence committed in the name of religion.
State Religion
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter analyses different ways of organizing the relationship between State and religious communities. Although official State religions are not forbidden in international human rights laws, they usually give rise to critical questions and concerns, in particular in light of the principle of non-discrimination. Many formally ‘secular’ States also privilege certain religions, often under the auspices of protecting their national identity or a particular cultural heritage, with discriminatory implications for people not following the dominant religions—illustrating that the term ‘secularism’ can carry very different meanings. Under freedom of religion or belief, States should provide an inclusive space for the free unfolding of religious or belief-related diversity for all, free from fear and free from discrimination. A ‘respectful distancing’ of State authority and religious communities—possibly in the name of an ‘inclusive secularism’—seems ultimately necessary in the interest of providing space for everyone’s freedom of religion or belief.
Women
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses the right to freedom of religion in relation to women’s right to equality and non-discrimination. Based on a holistic understanding of the positive interrelatedness of all human rights, practical synergies between freedom of religion or belief and gender equality are not only possible; they are a reality in many cases. Unfortunately, this is sometimes ignored or even denied. Some observers tend to turn concrete conflicts arising in the intersection of these two rights into an abstract normative antagonism, to the detriment of a holistic view. The chapter explores policies aimed at eliminating stereotypes and prejudices, problems arising from religious family laws, the autonomy of religious institutions, educational matters, and other issues. It also deals with conflicts related to issues of sexual orientation and gender identity.
Children
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter examines the right of the child to religious freedom. The Convention of the Rights of the Child confirms the status of each individual child as a rights holder, including in the area of freedom of religion or belief. At the same time, the child needs a facilitating environment usually provided by the family. Parents have rights and duties to provide direction to the child in the exercise of his or her freedom of religion or belief in a manner consistent with the evolving capacities of the child. This has practical implications for religious socialization within the family and/or community, religious education in the school, participation or non-participation in religious community activities, the prevention of harmful practices, and other areas.
Minorities
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter addresses issues concerning the rights of persons belonging to minorities in the area of religion or belief. Unlike in many traditional concepts of ‘minority protection’, which typically singled out specific groups for specific protection, modern human rights law is not based on any essentialist notions of pre-defined minorities, but always takes as its starting point the self-definition of human beings, who should be free to express their identities as individuals and in community with others. The entry point for justifying particular attention and additional measures of empowerment is the experience of increased vulnerability, often amounting to forced assimilation. Persons belonging to religious minorities need an adequate infrastructure which allows them to develop their community life in a sustainable manner, if they so wish. Safeguarding the rights of persons belonging to minorities also requires measures against discrimination, not least by tackling prejudices and stereotypes. This chapter also explores issues concerning religious practices of indigenous peoples.
Prohibition on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter addresses three aspects of torture in relation to the right to freedom of religion or belief. First, torture and other cruel, inhuman, or degrading treatment or punishment on the grounds of religion or belief. The prohibition of torture is recognized as forming part of jus cogens and entailing an erga omnes obligation of States towards the international community as a whole. Second, torture and other inhuman treatment may also arise from understandings of what particular religious scriptures or traditions allegedly require. They may be carried out by individuals animated by religious hatred, may enjoy the complicity of the Government, or may even be carried out by the authorities themselves. As discussed, human rights can never consider such actions a legitimate exercise of freedom of religion or belief. Finally, the religious sensitivities of detainees or prisoners of war (irrespective of the reasons for their incarceration) may be exploited in order to subject them to torture and other inhuman treatment, in other words utilizing the religion of detainees in order to subject them to tailored torture or inhuman treatment.
Legislative Issues
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses the importance of legislation in order to respect, ensure, fulfil and protect freedom of religion or belief, without discrimination. In many instances, States are called upon to make changes to their legislation, for example by adopting new laws or amendments in line with international standards, by clarifying definitions in legal provisions, by implementing freedom of religion or belief standards and equal treatment, and by adopting constitutional amendments. However, the duty to ‘give effect’ to human rights goes beyond legislative provision and, as the text of article 2 of the International Covenant on Civil and Political Rights emphasizes, it includes other ‘necessary steps’ to implement these rights. This includes oversight, statistical data that may point to gaps, and independent supervisory bodies to ensure follow-up. This chapter also stresses the importance of creating space for religion and belief diversity for all, without fear and discrimination, and with a respectful functional distancing and distinction between the State and religion(s) or belief(s). This is expanded on in detail in chapter 2.2.
The Persistent Objector Rule in Case Law and State Practice Post-1945
Authors: Green James A
Published: June 2017

This chapter continues to assess the legal status of the persistent objector rule by examining its basis in post-1945 case law and post-1945 state practice and opinio juris. The support for the existence of the persistent objector rule in the academic world, while being relavant to, and perhaps indicative of, the emergence of the rule, cannot be viewed as enough to constitute the rule as a matter of international law in itself. Investigation in this chapter reveals a relatively small but cumulatively convincing degree of support for the persistent objector rule. Further investigation into this body of practice will allow for the analyse of the mechanics of the rule: it is one thing to conclude that it exists, but how does it function?
The Persistence Criterion
Authors: Green James A
Published: June 2017

This chapter examines the persistent objector rule's ‘persistence’ requirement. The chapter argues that given the usual name for the rule, a requirement of persistent objection is referenced across the literature as being a key criterion for the rule's operation. More importantly, it can also be identified in state practice. The chapter first confirms that a single objection, or a small number of objections, will not be sufficient to gain exemption to an emerging norm of customary international law. It also considers the underlying rationale for the persistence requirement. The voluntarist understanding of international law cannot provide an adequate explanation for the need for persistence. Finally, the chapter engages with the tricky question of how persistent objection must be before a state can gain exempt status. The view is taken that there is no exact answer to this question; the necessary degree of persistence is context-specific, based on a range of factors (including extra-legal ones).
Ad Hoc Declarations of Acceptance of Jurisdiction
Authors: El Zeidy Mohamed M
Published: June 2017

Article 12(3) of the ICC Statute enables a non-State Party to the Statute which has a direct link to the crimes to consent to the Court’s exercise of jurisdiction on an ad hoc basis and subject to the conditions provided for in Article 12(2). This chapter examines the background and implications of the different ad hoc declarations of acceptance lodged by Palestine as of 2009. It discusses issues related to authority, scope, retroactivity, and withdrawal of declarations, and options of review by the Pre-Trial Chamber. It analyses the approach of the OTP to the declaration made on 22 January 2009, and issues related to the subsequent declarations. It argues that the experience of Palestine before the Court provides an incentive to rethink of more productive ways to respond to potential future declarations lodged by entities with controversial status under international law.
Self-Referrals as an Indication of the Inability of States to Cope with Non-State Actors
Authors: van der Wilt Harmen
Published: June 2017

Self-referrals have been one of the trademarks of early complementarity practice of the ICC. What they all have in common is that governments contend that they are unable to conduct fair and effective criminal proceedings against non-state actors over whom they do not wield control, and therefore seek the assistance of the ICC. This chapter investigates how the ICC has reacted to these claims of inability, and demonstrates that the ICC has largely side-stepped the issue by holding that a state’s inactivity renders a situation admissible and precludes any assessment of its unwillingness or inability. The ICC provided more clarity on inability and its parameters in a decision on Libya’s challenge to the Court’s jurisdiction, but the tools of the ICC to move against non-state actors remain defective-at least outside the scope of armed conflicts. This invites a reconsideration of substantive parts of the Rome Statute (e.g. in relation to terrorism).
Selecting Situations and Cases
Authors: Schabas William A
Published: June 2017

This chapter analyses selection and charging choices from an observer’s perspective. It re-visits the coherence and transparency of prosecutorial choices and charging practice, based on an analysis of ICC choices, criteria (e.g. ‘gravity’), and methods. It argues that existing practice has made the ICC vulnerable to criticisms of ‘selective justice’ and politicization, for example in the decisions reached with respect to Palestine and Iraq. It claims that further attention needs to be given to the inconsistency in the Prosecutor’s position, whereby selection of a situation is more or less mandatory once the objective criteria are met yet selection of cases is not. It notes that in reality, a great deal of discretion is involved in the selection both of situations and of cases.
Co-Perpetration
Authors: Ohlin Jens
Published: June 2017

The current doctrines of co-perpetration, most notably the control theory of perpetration, are heavily influenced by German criminal law theory. To some critics, the ICC’s importation of Claus Roxin’s control theory is evidence that one legal culture is having an outsized influence on the direction of the Court’s jurisprudence. This chapter situates the current doctrines within historical context. It lays out the foundations of the ICC doctrine of co-perpetration and evaluates the most notable objections to it, including alternate versions of co-perpetration. The chapter argues that the criticism about the ICC becoming too weighted towards the criminal law approach of one particular system is unfair, since the Court engages in first-order questions of criminal law theory. Nevertheless, the criticism remains that the Court has done insufficient work to justify its methodology and properly ground its importation of domestic criminal law theory within a general theory of sources of international law.
Charging War Crimes
Authors: Newton Michael A
Published: June 2017

The Rome Statute was designed to largely align criminal norms with actual state practice based on the realities of warfare. Article 8 embodied notable new refinements (e.g. in relation to disproportionate attack under Article 8(2)(b)(iv)), but did so against a backdrop of pragmatic military practice. This chapter dissects the structure of war crimes under Rome Statute to demonstrate this deliberate intention of Article 8 and then describes the correlative considerations related to charging practices for the maturing institution, including command responsibility. When properly understood and applied in light of the Elements of Crimes, the Court’s charging decisions with respect to war crimes ought to reflect the paradox that its operative provisions are at once revolutionary yet broadly reflective of the actual practice of warfare.
Cumulative Charges and Cumulative Convictions
Authors: Stuckenberg Carl-Friedrich
Published: June 2017

In ICCs and tribunals, defendants are typically accused or convicted of the commission of multiple crimes based on the same conduct. Fifteen years after the first decisions of the ad hoc Tribunals on the admissibility of cumulative charges and cumulative convictions, a robust, albeit primitive, set of judge-made rules has emerged, but many questions remain open. This becomes apparent upon closer analysis, which allows the classification of all conceivable situations of concursus delictorum according to a simple theoretical matrix. This chapter argues that there are more issues in this area of the law to be addressed beyond ‘speciality’ to which the firmly established Čelebići test solely refers. Legal principles should be carefully revised and developed by the ICC.
Trial Procedures—With a Particular Focus on the Relationship between the Proceedings of the Pre-Trial and Trial Chambers
Authors: Friman Håkan
Published: June 2017

The length of proceedings before the ICC has been an issue of concern. ICC proceedings at pre-trial and trial have been slow and can be improved. Based on a study of existing cases (e.g. Lubanga, Katanga and Ngudjolo Chui), this chapter highlights some areas that deserve closer review, in particular, consistency and coordination between the Pre-Trial and Trial Chambers, both of which are engaged in trial preparations. The chapter shows that the current combination of the two procedural stages is dysfunctional, and argues that the centre of gravity in criminal proceedings should be the first-instance trial, while the confirmation hearing should be seen as a supplementary process. The space of the Pre-Trial Chamber to prepare trial by resolving issues of disclosure, redactions, or admissibility of evidence is rather limited.
Sitting on Evidence?
Authors: Khan Karim A A , Buisman Caroline
Published: June 2017

The right to full and timely disclosure is one of the most fundamental rights of suspects and accused persons before the ICC. Regrettably, it is also the most violated right. This Chapter examines the difficulties the defence has encountered as a result of late, inadequate, or non-disclosure of material relevant to the case. Drawing heavily on the authors’ own experiences before the ICC, this contribution argues that the current disclosure regime of the ICC places an inordinate burden on limited defence resources, and improperly and unnecessarily constrains the ability of defence teams to effectively and efficiently prepare for and conduct the defence of the client. The Chapter makes a number of proposals for improvement, including management of time limits for final prosecution pre-trial disclosure, protective measures, transparency, and internal prosecution review.
Victim Participation Revisited—What the ICC is Learning about Itself
Authors: Vasiliev Sergey
Published: June 2017

The Chapter examines key turns in ICC jurisprudence in the area of victim participation. The model of victim participation under the Statute poses challenges in terms of effectiveness and sustainability, and victim participation has also emerged as a governance issue and a matter of concern for the ASP. This Chapter analyses hurdles faced by the Court in implementing victim participation (e.g. application, participation at trial, and representation). It argues that the Court deserves praise for developing creative solutions to balance ‘meaningful’ and ‘sustainable’ participation, and claims that the ICC should rediscover itself as a retributive court and free itself from the ‘restorative complex’. Meaningful participation essentially means one aligned with the Court’s core mandate and functions of criminal process (i.e. the determination of truth) and requires emphasis on collective forms of application, participation, and representation.
Completion, Legacy, and Complementarity at the ICC
Authors: Evenson Elizabeth , Smith Alison
Published: June 2017

This Chapter examines some of the key issues the Court and its States Parties will need to address to define the concept of completion for the ICC. While recognizing that completion has a number of unique features in the ICC context, this contribution identifies some of the lessons learned from strategies of other tribunals. It focuses on three key areas: capacity-building, outreach, and archive management. It argues that the consolidation of the Court’s legacy in situation countries is at the heart of a successful completion strategy, and suggests that the Court should draw a close connection between completion and positive complementarity. Capacity-building of national jurisdictions should be a pillar of completion strategies across the Court’s situations. The ICC will need to develop a working model for completion and establish methods (e.g. consultation with affected communities and national authorities) to adapt that model to a given situation.