bluuebunny/crossref_metadata_2025 huggingface dataset:
Ethics in Open Source Investigations
Authors: Rahman Zara , Ivens Gabriela
Published: August 2024

This chapter takes a rights-based approach to ethics, considering how people's rights are affected by both the process and the end result of open source investigations. It begins by interrogating the purpose of investigations, noting that the methods for open source investigations in pursuit of human rights are the same methods that can be used by malicious actors in pursuit of the exact opposite. With this in mind, it considers with whom the responsibility lies in the case of unintended negative consequences, and the ethics of how these distinct actors are treated, the power they hold, and the risks they face. This is followed by discussions on the built infrastructures of an investigation, the ethical considerations of data processes, the ethical challenges might arise in the future.
Open Source InformationPart of the Puzzle
Authors: Abrahams Fred , Murray Daragh
Published: August 2024

The foundation of most human rights investigations has traditionally been and will likely remain research on the ground: getting as close as possible to the people affected and the places where the violations occurred. Today, however, a host of other methods exist to document, expose, and help end abuses. This chapter focuses on one of the most significant of these new tools, and the main subject of this book — the use of open source material. It focuses on how investigators can use open source material to great effect, not only where physical access is limited or denied, while also considering security, ethics and verification. This material can produce compelling information on its own and can facilitate powerful documentation, especially when used in conjunction with the traditional field-based approach and other investigative techniques.
International Crimes: Law and Practice: Volume I: Genocide
Authors: Mettraux Guénaël
Published: August 2024

This book is the first of a four-volume compendium, which is a detailed and authoritative account of the law of international crimes. The volume provides a unique blend of academic rigour and an insight into the practice of international criminal law. The compendium is un-rivalled in its breadth and depth, covering almost a century of legal practice, dozens of jurisdictions (national and international), thousands of decisions and judgments and hundreds of cases. It discusses in detail the law of all four core international crimes (genocide, crimes against humanity, war crimes, aggression), their definitions, elements, normative status, and relationship to one another. It provides an exceptional and un-surpassed review of the relevant jurisprudence and material, making it a must-have for any practitioner or scholar in the field.
Towards a Universal Law of International Crimes
Authors: Mettraux Guénaël
Published: August 2024

This chapter considers the prospect of a universal law of international crimes. It begins by laying out the definition of international crimes — as violations of international law, characterized by the severity of their crimes and its very engagement with international law. The characterization of a particular conduct as an international core crime has a number of legal and jurisdictional consequences, including in regards to the scope of jurisdictional competence over such acts, the applicability of immunities and amnesties, the availability of particular defences, the existence of certain obligations to prevent and punish such acts, and whether suspects are entitled to refugee status. The chapter then turns to the history of international crimes and how international law regulates these, from mid-nineteenth-century norms to the international tribunals established during the 1990s. It also considers the trends in domestic and international jurisprudence of international crimes. These histories thus lay the foundation for the heart of the chapter — the making of a universal law of international crimes.
Genocide under General International Law
Authors: Mettraux Guénaël
Published: August 2024

This chapter describes genocide as it pertains to international law. It argues that the law of genocide applies in times of peace and war. When an act of genocide is committed in an armed conflict, its criminal character does not depend on its being materially connected to the conflict. Furthermore, where genocide occurs in an armed conflict, the applicability of the law of genocide and the obligations to prevent and punish genocide are not affected by the nature — international or non-international — of the conflict. The law of genocide is not, however, entirely insensitive to the existence of an armed conflict. When a conflict exists alongside acts of genocide, the determination of whether a particular conduct was legally permissible or whether it might constitute an act of genocide could, in some cases, be aided by the relevant standards of humanitarian law applicable to that conflict. However, the rules applicable to determining the responsibility of a state and those applicable to individuals are not identical.
Duties to Prevent and to Punish Genocide
Authors: Mettraux Guénaël
Published: August 2024

This chapter more closely examines the duties to prevent and punish genocide. The prevention and punishment of genocide are stated objectives of the Genocide Convention. Article I of the convention demands contracting parties to prevent and punish acts of genocide in order ‘to liberate mankind from such an odious scourge’. In so doing, the convention made preventing and punishing acts of genocide obligatory and not just optional. These duties are also now part of customary international law and are therefore binding even without any conventional obligation. As a result, they are binding on all states, including states that are not a party to the Genocide Convention. Moreover, the two obligations must be interpreted within the broader framework of international law so that the fulfillment of these obligations would not authorize a state to violate other international obligations. In other words, a state is not authorized to violate international law in order to fulfill those obligations. Within that general framework, states enjoy some discretion regarding the way in which they fulfill their obligations to prevent and punish genocide.
Contextual Element
Authors: Mettraux Guénaël
Published: August 2024

This chapter discusses the requirement of a contextual element. For crimes against humanity, the conduct in question must have been part of a widespread or systematic attack against a civilian population and the perpetrator must have acted whilst aware of that connection. These contextual elements provide normative specificity to war crimes and crimes against humanity and distinguish them from one another and from domestic crimes. In contrast, the Genocide Convention does not provide for any such contextual element for the crime of genocide, nor does customary international law. Genocide thus requires no proof of an attack against a civilian population, nor the existence of an armed conflict. Therefore, as a matter of general international law, the specificity of the crime of genocide lies not in any contextual element that would attach to its definition, but in its protected interest (i.e., certain protected groups) and in the associated requirement that crimes committed against members of these groups must have been committed with the intent to destroy in whole or in part the group as such.
Special Genocidal Intent/Dolus Specialis
Authors: Mettraux Guénaël
Published: August 2024

This chapter examines the role of special intent in the international law on genocide. It argues that the perpetrator's ultimate purpose, rather than the nature of the underlying act, is central to the crime of genocide. By their conduct, the perpetrator must have intended to contribute to the destruction, in whole or in part, of a protected group. This particular intent element is what makes genocide a unique crime and what triggers its application. Moreover, this special intent and the associated concern for the protection of certain groups are what give the crime of genocide its particular currency. This requirement also distinguishes genocide from other international crimes, including other discrimination-based crimes such as the crime of persecution. The law of genocide does not require that the intent to destroy a group be the sole or primary purpose of the perpetrator. A perpetrator could therefore be found guilty of genocide even if their personal motivation went beyond the criminal intent to commit genocide. Evidence of unrelated motives explaining their actions will not preclude a finding that they also possessed the requisite genocidal intent.
Punishable Acts
Authors: Mettraux Guénaël
Published: August 2024

This chapter enumerates the five punishable acts laid out in Article II of the Genocide Convention. These are: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. From the convention onwards, international instruments — in particular, the statutory instruments of international(ized) criminal tribunals — have dutifully stuck to that limited list of five recognized categories of underlying offences. But whilst the list is exhaustive as a matter of customary law, international law does not prohibit a national or international(ized) jurisdiction from expanding upon that list. Finally, an act which is not explicitly listed as one of the prohibited acts (e.g., rape or ‘ethnic cleansing’) could still constitute an act of genocide if it satisfies the actus reus and mens rea elements of one of the listed offences.
Genocide, Other Genocidal Acts, and Modes of Participation
Authors: Mettraux Guénaël
Published: August 2024

This chapter considers what extent of the act of and participation in genocide becomes punishable, as stated in Article III of the Genocide Convention. Article III provides that the following acts shall be punishable: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. These provisions were intended to ensure the effectiveness of the convention, encapsulating many categories of conduct which could contribute to the commission of such a crime, including at the earliest stages of the genocidal process. But whilst the convention provides for these five inchoate offences and modes of liability, a culpable contribution to an act of genocide is not limited to these. Liability could be incurred as a matter of customary law for contributing to an act of genocide in a variety of other ways, including by instigating, ordering, or aiding and abetting such a crime or pursuant to the doctrine of superior responsibility. Domestic regimes could recognize still more categories of punishable acts or modes of liability applicable to acts of genocide.
Capital-Raising
Authors: Moloney Niamh
Published: August 2024

This chapter examines the harmonized EU rules governing capital-raising through the markets, in particular as regards issuer disclosure. It addresses the Prospectus Regulation, the Transparency Directive, the EU’s financial reporting regime (including with respect to International Financial Reporting Standards), the rules governing admission of securities to trading venues, and the rules relating to investment analysts and investment research, including the related administrative rules and the supporting supervisory and enforcement arrangements. The chapter considers the evolution and purpose of the issuer disclosure regime, including in light of the Capital Markets Union agenda. It then addresses the prospectus and ongoing disclosure regimes (including their scope of application, how they approach issuer disclosure, and the related ‘regulatory passport’) and the regime governing admission to trading. It also considers the supporting regulatory ecosystem, including the Securitization Regulation, examines the impact of the sustainable finance agenda, the digital finance agenda, and the Capital Markets Union agenda, and considers the relationship between the issuer disclosure regime and the development of market finance and the integration of capital markets in the EU.
Investment Firms and Investment Services
Authors: Moloney Niamh
Published: August 2024

This chapter examines the harmonized EU rules governing the regulation of investment firms and investment services under the Markets in Financial Instruments Directive II/Markets in Financial Instruments Regulation (MiFID II/MiFIR) and, as regards prudential regulation, under the Investment Firm Directive/Investment Firm Regulation (IFD/IFR) and Capital Requirements Directive IV/Capital Requirements Regulation (CRD IV/CRR), including the related administrative rules and the supporting supervisory and enforcement arrangements.

The chapter considers the evolution and purpose of the investment services regime, including in light of the Capital Markets Union agenda. The chapter then examines the scope of MiFID II/MiFIR, its authorization requirements (including as regards investment firm governance), and its ongoing requirements (including as regards conflicts-of-interest management and conduct regulation); the prudential regulation regime under IFD/IFR and CRD IV/CRR, including as regards capital, risk management, and firm governance; the investment services ‘regulatory passport’ and related home/host arrangements; and the supporting supervisory structure, including as regards ESMA’s role.
Order Execution Venues
Authors: Moloney Niamh
Published: August 2024

This chapter examines the regulation of trading venues in the EU under the Markets in Financial Instruments Directive II/Markets in Financial Instruments Regulation (MiFID II/MiFIR), as regards the different classes of MiFID II trading venue (including regulated markets, multilateral trading facilities (MTFs), and organized trading facilities (OTFs)), and including the related administrative rules and the supporting supervisory and enforcement arrangements. The chapter considers the evolution and purpose of the trading venue regime, including in relation to the Capital Markets Union agenda, the MiFID II/MiFIR Review, and the related debates as to competitive order execution and the balance between ‘dark’ and ‘lit’ trading. The chapter then examines the MiFID II/MiFIR trading venue classification scheme and addresses the authorization and ongoing regulation of different classes of trading venue, including the trade transparency regime and how it applies to different asset classes. The chapter also addresses the publication of transparency disclosures (including the reform proposals for a ‘consolidated tape’), transaction reporting, and ESMA’s supervision of data reporting services providers. It concludes by considering the regulation of central securities depositaries and the settlement process under the Central Securities Depositaries Regulation.
Trading
Authors: Moloney Niamh
Published: August 2024

This chapter examines the harmonized EU rules governing the regulation of the trading process, in particular under the Markets in Financial Instruments Directive II/Markets in Financial Instruments Regulation (MiFID II/MiFIR), the Short Selling Regulation, the Securities Financing Transactions Regulation, and (as regards derivatives markets) the European Market Infrastructure Regulation (EMIR), including the related administrative rules and the supporting supervisory and enforcement arrangements. The chapter considers the evolution and purpose of the regime, including in relation to the impact of the Capital Markets Union agenda and market developments, including the 2021 Gamestop/meme-stock episode and the restrictions placed on short selling over the Covid-19 pandemic. The chapter then considers the different elements of the regime governing trading, including as regards order execution, algorithmic trading, and position management (MiFID II/MiFIR); short selling (Short Selling Regulation); securities financing transactions (Securities Financing Transactions Regulation); and derivatives markets, including as regards central clearing counterparty (CCP) clearing, bilateral risk management, and reporting obligations, and the specific supervisory arrangements that apply to EU CCPs (national supervisors coordinated through ESMA) and trade repositories (supervised by ESMA) (EMIR).
Rating Agencies
Authors: Moloney Niamh
Published: August 2024

Rating agencies form part of the investment intermediation process as a type of market ‘gatekeeper’ that assesses credit risk through the credit rating process. This chapter examines the harmonized EU rules governing rating agencies, including the related administrative rules and the supporting supervisory and enforcement arrangements. It considers the evolution and purpose of the rating agency regime, including as regards the role played by ‘gatekeepers’ in financial markets. The chapter then considers the different elements of the regime governing rating agencies, including as regards authorization, conduct regulation (including conflict-of-interest management), methodologies, over-reliance, market structure, and disclosure, as well as ESMA’s direct supervision of rating agencies.
Market Abuse
Authors: Moloney Niamh
Published: August 2024

This chapter examines the harmonized EU rules governing the prohibition of market abuse under the Market Abuse Regulation, including the related administrative rules and the supporting supervisory and enforcement arrangements. It also examines the regulation of benchmarks under the Benchmark Regulation, including the related administrative rules and the supporting supervisory and enforcement arrangements. The chapter considers the evolution and purpose of the market abuse regime, including the debates relating to the rationales for prohibiting insider dealing and market manipulation. It then considers the different elements of the Market Abuse Regulation, including as regards how insider dealing and market manipulation are defined, and the obligations on issuers to disclose ‘inside information’. It also examines the benchmark regime, considering the context for the EU’s regulation of benchmarks and their administrators under the Benchmark Regulation, the design of the Regulation, and how the Regulation has developed, including as regards sustainable finance and the transition from LIBOR.
Retail Markets
Authors: Moloney Niamh
Published: August 2024

This chapter examines the harmonized EU rules governing the retail markets and retail investor protection, in particular under the Markets in Financial Instruments Directive II/Markets in Financial Instruments Regulation (MiFID II/MiFIR), the Packaged Retail and Insurance-based Investment Products (PRIIPs) Regulation, and the Investor Compensation Schemes Directive, and including the related administrative rules and the supporting supervisory and enforcement arrangements.The chapter considers the evolution and purpose of the regime, including its treatment of investor protection and investor empowerment, and market developments, including the Gamestop episode and technological innovation. The Chapter then considers the different elements of the regime, including as regards fair treatment, marketing, disclosure, know-your-client, execution-only, investment advice, product governance, and product intervention (including ESMA’s first use in 2018 of its product intervention powers) (MiFID II/MiFIR); summary investment product disclosure (PRIIPs Regulation); and the Investor Compensation Scheme Directive.
Third Countries
Authors: Moloney Niamh
Published: August 2024

This chapter examines the harmonized EU rules governing access by third country actors to the EU financial market, including in relation to investment services under the Markets in Financial Instruments Directive II/Markets in Financial Instruments Regulation (MiFID II/MiFIR) and in relation to derivatives transactions, central clearing counterparties (CCPs), and trade repositories under the European Market Infrastructure Regulation (EMIR).

The chapter considers the nature of international financial governance and the evolution and purpose of the EU’s third country regime in this regard, including as regards mutual recognition and ‘equivalence’ as mechanisms for facilitating market access internationally. The chapter then considers the different elements of the EU’s third country regime, including the foundational notion of equivalence, ESMA’s role in assessing equivalence, and the third country access regimes for different market segments (including investment funds and delegation practices; issuer disclosure; investment services; derivatives markets, central clearing counterparties, and trade repositories; and central securities depositaries and benchmarks/benchmark administrators). It also considers the UK’s withdrawal from the EU, the EU/UK Trade and Cooperation Agreement, and the nature of the UK’s access to the EU financial market.
Introduction: Mechanisms for supervision and remedial Action
Authors: Eide Asbjørn
Published: August 2024

This introductory chapter provides a brief review of the evolution of the international institutions governing minority protection and the rights of persons belonging to minorities, as well as a systematic categorisation of those institutions that now exist. It also focuses on the mechanisms to supervise or control national implementation of and compliance with international human rights standards including minority rights. Particular reference will be made to mechanisms concerning human rights in general and minority rights in particular. Hence, the chapter first gives a cursory review of the main stages in the evolution of mechanisms, reflecting the increasing level of international cooperation regionally and globally. Hereafter there is a brief presentation and categorisation of the mechanisms that now exist. The chapter finally concludes with some reflections on the functions and relative usefulness of the different mechanisms.
Legal nature of minority rights as part of human rights, limitations, derogations, reservations, and interpretative statements
Authors: Hannikainen Lauri
Published: August 2024

This chapter covers the legal interpretations and limitations of minority rights as a sub-category of human rights. It explores the legal nature of minority rights and their purposes of ensuring the de facto equality of minorities with the majority and/or the survival of minorities. These minority rights may contain supportive features, such as affirmative action or special protection or even mild special rights. However, since affirmative action and special rights may raise negative feelings towards minorities among the majority population, and should be resorted to with caution, it is important to interpret all human rights provisions in a minority-sensitive way — in recognition of the interdependence of human rights. The chapter elaborates further on the limitations of minority rights, as well as their applicable derogations and reservations.
Non-discrimination and full and effective equality
Authors: Henrard Kristin
Published: August 2024

This chapter considers the relevance and instruments of non-discrimination and equality in the protection of minority rights. It provides an overview of the applicable legal standards relating to non-discrimination as well as the specific issues to be considered. Of particular interest is the equality principle and the issues surrounding the concept, such as the ‘equal opportunity approach’. The chapter then analyses a number of case laws focusing on the prohibition of discrimination (being the central component of the first pillar of an adequate system of minority protection), while including affirmative action and more specifically the interrelation of non-discrimination and affirmative action. Throughout the analysis the underlying theme is the extent to which certain mechanisms contribute (or not) to substantive equality, the latter being the ultimate goal of minority protection.
Religious rights
Authors: Machnyikova Zdenka
Published: August 2024

This chapter provides an overview of the nature and scope of the minimum standards for freedom of religion and belief as regulated by the principal norms of international standards. The main focus on their interpretation is through the jurisprudence of the supervisory bodies, with special attention paid to the effect of their practice on the protection of the enjoyment of the right to freedom of thought, conscience, and religion by minorities. Religion entails a broad range of rights that are of central importance to personal, as well as group, identity. Moreover, religion and particular beliefs are often the unique features distinguishing members of minorities from the majority. In this respect, the principle of religious pluralism protected by the freedom of religion often constitutes the foundation for the protection of religious minorities.
Family, private life, and cultural rights
Authors: Holt Sally
Published: August 2024

This chapter analyses the aspects and issues of the rights to family and private life, as well as the cultural rights, specific to minority groups. The rights to family and private life are closely interlinked with cultural rights — the latter of which holds particular significance for persons belonging to minorities, as these encompass their very cultural difference vis-à-vis the wider society that they wish to preserve. Certain aspects of the right to family and private life may also be of special relevance for minority communities. Contemporary issues surrounding the right to family life involve immigration and educational policies, while heightened surveillance and the destruction of property may impede minorities' right to privacy. The chapter further explores the content of the aforementioned rights in more detail, and presents an analysis of the case laws pertaining to each of these three rights.
Education
Authors: Thornberry Patrick
Published: August 2024

This chapter places emphasis on the development of educational norms through jurisprudence, specifically underscoring education as a human right. Education, as the UN Committee on Economic, Social and Cultural Rights puts it, is ‘both a human right in itself and an indispensable means of realizing other human rights’. The chapter notes that the general right to education is reasonably elaborate as concerns levels of education, parental choice, the curriculum, participation, and resources. Current international standards favour real choices for minorities in curricula and institutions, and are anti-fundamentalist in tone. These developments labour under the assumption that the best way of facilitating rights to existence and identity is to promote the social integration of minorities, while taking care to avoid cultural constriction in the integration process.
Physical integrity, due process and the administration of justice
Authors: Hofmann Rainer , Nasic Halida
Published: August 2024

This chapter examines the right to existence, specifically both the existence of the individual and the existence of the group. Beyond mere ‘physical’ existence and well-being, the existence of a minority group occurs through the shared consciousness of its members. The first part of this chapter focuses on the more limited notion of ‘physical’ existence of individual persons belonging to minorities, specifically their right to life, and freedom from torture, inhuman, and degrading treatment. The chapter then considers the rights pertaining to the administration of justice and legal proceedings in a procedurally fair and transparent manner. The contents of the rights discussed in this chapter are all assessed in the different international human rights documents with global or regional applicability, based on a general analysis of the pertinent case law with a particular emphasis on the emerging jurisprudence relevant to minority protection.
Socio-economic rights as minority rights
Authors: Salomon Margot E
Published: August 2024

This chapter covers international jurisprudential developments relating to minorities as regards socio-economic rights. On the one hand it considers cases that deal with discrimination against minorities in access to socio-economic rights and opportunities, but its focus lies beyond these concerns. As a direct result of the absence of any instrument explicitly addressing rights to housing, land, natural resources, food, health, and a healthy environment from a minority perspective, the recent history of minority jurisprudence in this area is reflective of a gap in our international system of protection, and the resultant innovative and purposive evolution of it. The chapter emphasises that the effective protection of socio-economic rights for minorities is tantamount to the protection of minority rights. That is, the exercise of socio-economic rights serves to protect their culture and particular ways of life: the elements of their collective identity that make them distinct.
The World Trade Organization
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

The World Trade Organization (WTO) is one of the most important intergovernmental organizations in the world, yet the way in which it functions as an organization and the scope of its authority and power are still poorly understood. This revised new edition provides a complete overview of the law and practice of the WTO. The chapters begin with the institutional law of the WTO (such as the sources of law and remedies of the dispute settlement system), then tackle the principal substantive obligations of the WTO regime (including tariffs, quotas, and MFN). They then move on to consider unfair trade, regional trading arrangements, and developing countries. In its final section the book deals with the consequences of globalization: firstly, where free trade is seen to be incompatible with environmental protection and, secondly, where WTO law confronts legal regimes governing issues of competition and intellectual property.
Sources of Law and Principles of Interpretation
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter discusses the sources of World Trade Organization (WTO) law, which are the covered agreements that appear in Appendix 1 of the Understanding on Rules and Procedures Governing Settlement of Disputes (Dispute Settlement Understanding or DSU). These agreements include provisions of various other international agreements, which should also be regarded as sources of WTO law. However, the covered and incorporated agreements do not exhaust the WTO sources of law. Additional sources of WTO law include state practice, secondary law, implied powers of WTO adjudicating bodies, and rules of public international law that may have relevance through the provisions of the Vienna Convention on the Law of Treaties (VCLT).
Enforcement of WTO Obligations
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter first discusses the implementation of the Dispute Settlement Body's (DSB) recommendations and rulings. It then covers remedies in cases of successful non-violation and situation complaints; recommendations and suggestions by panels and the Appellate Body regarding the implementation of DSB decisions; lex specialis remedies; prompt compliance and the reasonable period of time; compliance review pursuant to Dispute Settlement Understanding (DSU) Article 21.5; enforcement measures pursuant to DSU Article 22; and compliance following the adoption of countermeasures.
Most Favoured Nation Treatment
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter focuses on the Most-Favoured-Nation (MFN) obligation in GATT. It discusses the provisions of GATT Article 1; the MFN in the GATS; and exceptions in MFN. It concludes that the administration of MFN today is paradoxical: while the standards for the application of MFN treatment are very strict and the elements of MFN are all-encompassing, the broad exceptions to MFN for preferential trade agreements and for developing countries sharply restrict the scope and the actual importance of MFN. In fact, it can be stated that in the early part of the twenty-first century, MFN is fast becoming only a quaint exception to the general rule that preferential trade arrangements now rule international trade.
National Treatment
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter discusses the National Treatment (NT) obligation present in all World Trade Organization (WTO) agreements. It begins with a brief overview of important NT provisions in the Agreement on Technical Barriers to Trade (TBT) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), in the GATS, and under the TRIPS Agreement. It then discusses the general NT obligation in GATT enshrined in its Article III. It covers the application of Article III to state-trading monopolies; the application of Article III national treatment obligations to sub-federal units of WTO members; the relationship between Article III and Article XI of the GATT; and exceptions to the National Treatment Principle.
Tariffs, Quotas, and Other Barriers to Market Access for Goods
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter focuses on the age-old classic market access barriers that prevent a product from even crossing the border (quotas, including quotas that allow zero importation) or that render it less competitive. It discusses the law on tariffs on goods; customs-related measures; quantitative restrictions; and other measures restricting market access (i.e. state-trading enterprises, technical barriers to trade, sanitary and phytosanitary measures, and sectoral market access agreements).
Agricultural Trade
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter examines the Uruguay Round Agreement on Agriculture (AoA). It begins by considering the reasons for the de facto non-application of GATT to agricultural products and non-trade concerns in agricultural trade. It then provides an overview of the AoA, including its product coverage, substantive provisions, and relationship to other WTO agreements. This is followed by discussions of the AoA's provisions on market access, domestic support, and export competition; reviews and remedies; special treatment of developing countries; and changing interests in agriculture and the Doha-Round negotiations.
Subsidies and Countervailing Duties
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

The Agreement on Subsidies and Countervailing Measures (SCM) is an integral part of the World Trade Organization (WTO) Agreement. It provides for the first time a legal definition of what constitutes a subsidy for the purposes of the multilateral trading system. This chapter first deals with the definition and classification of subsidies. It then discusses the institutional mechanisms aimed at counteracting subsidies; preferential rules for developing and least developed countries; and the Committee on Subsidies and Countervailing Measures.
Safeguards
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

Safeguards refer to the right of a WTO Member to impose temporary tariffs, quotas, tariff-rate quotas, or other measures to ensure that its economy or domestic industries do not suffer serious harm from imports and trade concessions. Unlike rights to impose import restrictions to counteract dumping and subsidies, safeguard remedies are not based on any concept of unfair trade or remedy for distortions by exporters. Safeguard remedies allow fairly traded imports to be restricted. This chapter discusses the legal and policy framework for safeguards in the GATT/WTO regime; GATT Article XIX and the Agreement on Safeguards; safeguard measures for balance-of-payment reasons; safeguard measures in textile and clothing trade; and prohibition on voluntary export restraints.
Technical Regulations, Standards, and Health Measures
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter begins with a brief description of the role of the Agreement of the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT). Both agreements represent a compromise ‘between, on the one hand, the desire to avoid creating unnecessary obstacles to international trade and, on the other hand, the recognition of Members' right to regulate’. The discussions then turn to the legal relationship between GATT, TBT and SPS Agreement; and the coverage, scope, and substantive provisions of the TBT and SPS.
Preferential Trade Agreements
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter focuses on the role of preferential trade agreements (PTAs) in the GATT/WTO regime. WTO Members that have satisfied the requirements included in Article XXIV GATT can justifiably treat products originating in some WTO Members (those with which they have formed a PTA) better than like products originating in the remaining WTO Members. Art. XXIV GATT distinguishes between two forms of PTAs: free trade areas (FTA) and customs unions (CU). The negotiating history of Art. XXIV GATT; the explanations advanced by economists and political scientists for why one might opt to go preferential; the legal tests for approving a PTA; and PTAs in WTO dispute settlement are discussed.
Trade in Services
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter begins with an introduction to the General Agreement on Trade in Services (GATS). It then discusses the relationship between GATT and GATS; the scope of GATS; WTO Members' general obligations under GATS; specific commitments and general exceptions; and the special regimes for telecom and financial services.
Intellectual Property
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter begins with a discussion of the link between intellectual property and trade in the WTO. It then details the types of intellectual property addressed in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement); an overview of the TRIPS Agreement; institutional arrangements; provisions relating to developing countries; public policy criticisms of the TRIPS Agreement; general principles of the TRIPS Agreement; minimum substantive standards that must be observed by all WTO Members for each category of IP rights; enforcement of intellectual property rights under the TRIPS Agreement; exhaustion of intellectual property rights; and restrictive business practices.
Developing Countries
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter focuses on efforts to nuance the GATT framework to accommodate the needs of developing countries. It details the introduction of the Enabling Clause — the decision of the GATT Contracting Parties, which allowed (‘enabled’) deviations from the most favoured nation (MFN) rate in favour of goods originating from developing countries to become a permanent feature of the GATT, and now the WTO legal order. The key elements and beneficiaries of the Enabling Clause as well as other provisions on special and differential treatment are also discussed.
Environmental Protection and Trade
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter examines WTO rules on environmental protection, focusing on GATT Article XX. It first discusses the basis of the environmentalist objection to the rules of the multilateral trading system; the environmental impact of trade; the Tuna Dolphin I case; and how the WTO/GATT system will accommodate multilateral environmental agreements (MEAs) which employ trade restrictions; unilateral measures to protect the environment beyond national jurisdiction. It then details WTO rules on energy-related trade, the protection of natural resources, process and production methods, recycling and packaging, eco-labelling, the export of hazardous substances and wastes, environmental taxes, and border tax adjustment (BTA) in support of climate change legislation.
Trade and Investment
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter examines WTO rules on trade and investment. It begins with a discussion of trade and investment in the GATT, covering the Havana Charter of the International Trade Organization (ITO) of March 1948, the 1984 report Canada — Administration of the Foreign Investment Review Act (FIRA), and the failed efforts to negotiate a comprehensive treaty on investment, known as the Multilateral Agreement on Investment (MAI). It then details the scope and provisions of the Agreement on Trade-Related Investment Measures (TRIMs) and considers the investment-related provisions of the General Agreement on Trade in Services (GATS), Agreement on Subsidies and Countervailing Measures, Agreement on Trade-Related Aspects of Intellectual Property, and Plurilateral Agreement on Government Procurement (GPA).
Competition Policy and Trade
Authors: Matsushita Mitsuo , Schoenbaum Thomas J , Mavroidis Petros C , Hahn Michael
Published: August 2024

This chapter examines competition policy issues in the WTO regime. Topics discussed include anti-competitive conduct that adversely affects international trade; provisions on competition policy in WTO agreements; extraterritorial application of domestic competition law; trade policy/trade laws and competition policy; and competition policy and international cooperation in the WTO.
Context
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This first section starts by defining the international law of maritime boundary delimitation. It chronicles the history of boundary delimitation. It then provides an early history of maritime claims and maritime boundary delimitation. Prior to the First United Nations Conference on the Law of the Sea in 1958, it states, there was no international consensus on the rules applicable to maritime delimitation, and limited State practice of maritime boundary delimitation. Following the First World War, a number of attempts were made by non-governmental groups to codify the emerging rules of international law related to maritime jurisdiction and the delimitation of overlapping claims. The chapter then goes on to outline the relevant zones of maritime sovereignty and jurisdictions under the modern law.
Practical Considerations
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter examines issues of negotiation vs litigation in the delimitation of maritime boundaries. Articles 15, 74, and 83 UNCLOS emphasize the fundamental importance of agreement in delimitation. Delimitation by agreement offers the parties maximum control over the process. States have discretion over the methodology chosen and outcome arrived at, so that equitable solution can be achieved. When States delimit maritime boundaries by agreement, they are free to arrive at any acceptable arrangement ‘on the basis of international law’. Delimitations by agreement may differ significantly from the outcome that an international court or tribunal might arrive at if asked to delimit the same boundary. Examples are given of novel negotiated outcomes. The chapter also examines third-party dispute resolution and practical considerations surrounding the choice of forum (ICJ, ITLOS, or arbitration). It also considers a typical delimitation case, the critical role of evidence in modern delimitation disputes, and the role of third States and third-State interests. Finally, it considers the preparation of a claim and the importance of an effective and well-managed delimitation team.
United Kingdom of Great Britain and Northern Ireland v. French Republic (Decision of the ad hoc ‘Court of Arbitration’, 30 June 1977)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The chapter opens with an introduction to UK/France, which concerned the delimitation between France and the UK of the continental shelf boundary throughout the central and western portions of the English Channel and beyond. The chapter considers the two sides of this case in detail and provides a final analysis on the significance of the decision and its contribution to the field of international law. UK/France is a leading example of the use of ad hoc arbitration procedures to achieve a fast and effective result to a maritime delimitation dispute. UK/France is a classic example of a delimitation dispute where one State (the UK) argued for delimitation based on strict equidistance, while the other (France) argued that equidistance was not obligatory and should, in large part, be displaced by other methods in order to achieve a delimitation that was in accordance with ‘equitable principles’. While the outcome of the case represented a compromise between the two States’ various claims, the Decision represents a foundational example in modern jurisprudence of the use of equidistance as a starting point in maritime delimitation.
Tunisia v. Libya (Judgment of the International Court of Justice, 24 February 1982)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

This chapter begins by setting the context of this case. Tunisia and Libya are situated on the northern coastline of the African continent fronting the Mediterranean Sea. The States’ most proximate coastlines are adjacent, with Tunisia lying to the west and Libya to its east and south-east. The delimitation of this case was concerned with the area of the continental shelf lying to the north of the coast on each side of Ras Ajdir. The chapter concludes by assessing the importance of this case. The judgment includes an interesting passage about the role of equity and equitable principles in continental shelf delimitation that still holds true today. The court’s approach of dividing the delimitation area into two sectors, each of which would be treated separately utilizing different delimitation methods, was sensible in the circumstances and has become relatively commonplace in subsequent jurisprudence.
Canada v. United States of America (Judgment of the Chamber of the International Court of Justice, 12 October 1984)
Authors: Fietta Stephen , Cleverly Robin
Published: August 2024

The case analyzed in this chapter concerned delimitation of a single maritime boundary in the ‘Gulf of Maine area’. The Gulf is a broad oceanic indentation in the eastern coast of the North American continent, roughly the shape of an elongated rectangle, and bordered on three sides by land and on the fourth by the open Atlantic Ocean. The role of political and economic considerations in the delimitation process is duscussed. This was a case of many firsts: the first delimitation dispute (indeed, the first dispute of any kind) to be referred to a Chamber of the International Court of Justice (ICJ) under Article 26(2) of the ICJ Statute; the first maritime boundary case to be decided after the adoption of UNCLOS; the first time the court had been asked to delimit a single maritime boundary encompassing the continental shelf and exclusive fishery zones; and the first time the court had been charged not just with the enunciation of principles and methods, but also with the delimitation of an actual boundary line. The chapter concludes that the judgment provides a valuable example of the application of three leading methods of delimitation (bisector, adjusted median line, and perpendicular) over the boundary’s three sectors.