bluuebunny/crossref_metadata_2025 huggingface dataset:
Occupation
Authors: Murray Daragh
Published: August 2024

The law of armed conflict subjects the Occupying Power to extensive positive obligations. In particular, the Occupying Power must restore and ensure public order and civil life, which requires extensive involvement in the administration of occupied territory. This chapter begins with a definition of occupation. It then discusses the administration of occupied territory, covering the legislative authority of the Occupying Power; censorship and limitations on communication; restrictions on movement, association, and assembly; searches of individuals’ property; the administration of criminal law; respect for religious freedom; protection and education of children; provision of medical care, food, and other essential supplies to inhabitants of the occupied territory; compulsory labour by protected persons; transfer, deportation, and evacuation of civilians; and protection of property rights.
Multinational Operations
Authors: Murray Daragh
Published: August 2024

This chapter addresses the law applicable during multinational, or coalition, operations. States participating in multinational operations remain bound by their national and international legal obligations. If a multinational force or its members are not parties to an armed conflict, the conduct of the force is regulated by international human rights law. If the multinational force or its participating States are parties to an armed conflict, their conduct is regulated in accordance with the ‘active hostilities’ framework or ‘security operations’ framework, dependent upon the situation. The remainder of the chapter discusses the conduct of multinational operations; the use of force for the protection of others; and States’ responsibility for the conduct of their armed forces during multinational operations.
Transnational Organized Crime
Authors: Boister Neil
Published: August 2024

The legal response at an international level to the threat of transnational organized crime has been plagued by difficulty in deciding on an appropriate target: the ‘king pins’ involved in diverse forms of transnational crime, the suppression of criminal activities that criminal organizations become involved in, or pursuit of the organizations themselves. This chapter explores the nature of transnational organized crime and the failure of efforts to settle on a definition. It then turns to the substitute adopted at an international level—the notion of an ‘organized criminal group’, and examines how it serves as the lynchpin of a set of offences developed to try to counter transnational organized crime.
Money Laundering
Authors: Boister Neil
Published: August 2024

The crime of money laundering is a recent innovation of an unusual kind, in that it involves conduct that occurs after the commission of another, ‘predicate’, offence, and is both dependent upon and independent of that offence. The crime has become increasingly important as a method for suppressing the practice of both money laundering and the predicate offence, and also because it anchors the Anti-Money Laundering (AML) regime that imposes a web of onerous regulatory obligations on financial institutions and provides a substantive basis for asset recovery (discussed in Chapter Nineteen). This chapter discusses the nature of the conduct involved and the reasons for criminalization, as well as the forerunner offences in national law, before analyzing the substantive offence itself from its initial limitation to drug money laundering to ‘all crimes’ laundering. It then briefly examines the importance of the liability of legal persons and comments on the punishment applied to money laundering, before finally turning to the main institution for coordination of the global anti-money laundering regime, the Financial Action Task Force, as a prelude to commenting upon the effectiveness of the criminalization of money laundering.
Preamble
Authors: Rose Cecily , Kubiciel Michael , Landwehr Oliver
Published: August 2024

This section is about the preamble of the United Nations Convention Against Corruption (UNCAC)
Participation and Attempt
Authors: Kubiciel Michael , Spörl Cornelia
Published: August 2024

This section is about Article 27 of the United Nations Convention Against Corruption (UNCAC), dealing with Participation and Attempt
Knowledge, Intent, and Purpose as Elements of an Offence
Authors: Kubiciel Michael , Spörl Cornelia
Published: August 2024

This section is about Article 28 of the United Nations Convention Against Corruption (UNCAC), dealing with Knowledge, Intent, and Purpose as Elements of an Offence
Specialized Authorities
Authors: Slingerland Willeke
Published: August 2024

This section is about Article 36 of the United Nations Convention Against Corruption (UNCAC), dealing with Specialized Authorities
Cooperation Between National Authorities
Authors: Nichols Philip M
Published: August 2024

This section is about Article 38 of the United Nations Convention Against Corruption (UNCAC), dealing with Cooperation Between National Authorities
Cooperation between National Authorities and the Private Sector
Authors: Nichols Philip M
Published: August 2024

This section is about Article 39 of the United Nations Convention Against Corruption (UNCAC), dealing with Cooperation between National Authorities and the Private Sector
International Cooperation
Authors: Currie Robert J
Published: August 2024

This section is about Article 43 of the United Nations Convention Against Corruption (UNCAC), dealing with International Cooperation
Transfer of Criminal Proceedings
Authors: Zimmermann Frank
Published: August 2024

This section is about Article 47 of the United Nations Convention Against Corruption (UNCAC), dealing with Transfer of Criminal Proceedings
Special Cooperation
Authors: Banna Badr El
Published: August 2024

This section is about Article 56 of the United Nations Convention Against Corruption (UNCAC), dealing with Special Cooperation
Implementation of the Convention
Authors: Landwehr Oliver
Published: August 2024

This section is about Article 65 of the United Nations Convention Against Corruption (UNCAC), dealing with Implementation of the Convention
Signature, Ratification, Acceptance, Approval, and Accession
Authors: Tams Christian J , Scheu Julian
Published: August 2024

This section is about Article 67 of the United Nations Convention Against Corruption (UNCAC), dealing with Signature, Ratification, Acceptance, Approval, and Accession
Denunciation
Authors: Tams Christian J , Scheu Julian
Published: August 2024

This section is about Article 70 of the United Nations Convention Against Corruption (UNCAC), dealing with Denunciation
Article 92 UN Charter
Authors: Chesterman Simon , Oellers-Frahm Karin
Published: August 2024

This section is about Article 92 UN Charter
Article 1
Authors: Chesterman Simon , Gowlland-Debbas Vera
Published: August 2024

This section is about Article 1 of the Statute of the International Court of Justice
Article 4
Authors: Georget Patricia
Published: August 2024

This section is about Article 4 of the Statute of the International Court of Justice
Article 7
Authors: Georget Patricia
Published: August 2024

This section is about Article 7 of the Statute of the International Court of Justice
Article 8
Authors: Georget Patricia
Published: August 2024

This section is about Article 8 of the Statute of the International Court of Justice
Article 16
Authors: Couvreur Philippe
Published: August 2024

This section is about Article 16 of the Statute of the International Court of Justice
Article 18
Authors: Anderson David , Wordsworth Samuel
Published: August 2024

This section is about Article 18 of the Statute of the International Court of Justice
Article 22
Authors: Shaw Malcolm
Published: August 2024

This section is about Article 22 of the Statute of the International Court of Justice
Article 35
Authors: Zimmermann Andreas
Published: August 2024

This section is about Article 35 of the Statute of the International Court of Justice
Article 44
Authors: Walter Christian
Published: August 2024

This section is about Article 44 of the Statute of the International Court of Justice
Article 47
Authors: von Schorlemer Sabine , Tzanakopoulos Antonios
Published: August 2024

This section is about Article 47 of the Statute of the International Court of Justice
Article 54
Authors: Fassbender Bardo
Published: August 2024

This section is about Article 54 of the Statute of the International Court of Justice
Article 57
Authors: Hofmann Rainer , Karl Linda
Published: August 2024

This section is about Article 57 of the Statute of the International Court of Justice
Article 58
Authors: Khan Daniel-Erasmus
Published: August 2024

This section is about Article 58 of the Statute of the International Court of Justice
Article 61
Authors: Zimmermann Andreas , Geiß Robin
Published: August 2024

This section is about Article 61 of the Statute of the International Court of Justice
Article 67
Authors: Paulus Andreas
Published: August 2024

This section is about Article 67 of the Statute of the International Court of Justice
Article 70
Authors: Karl Wolfram
Published: August 2024

This section is about Article 70 of the Statute of the International Court of Justice
Defining Intangible Cultural Heritage
Authors: Francioni Francesco
Published: August 2024

This chapter examines the definitions of the purpose laid out in Article 1 — the ‘intangible cultural heritage’ (ICH). It considers the challenges of defining ICH. Historically, in the case of cultural heritage, the complexity and dangers of defining it increase in proportion to the variety of methods used in the different legal instruments adopted at the international level for its protection. However, when it comes to ICH, it is clear that the definitional criteria of earlier legal instruments could work for an international instrument aimed at its safeguarding. Thus, this chapter shows why the question of definition of ICH came up at a very early stage of UNESCO’s preparatory work on the subject, and even before a decision was reached that the appropriate regulatory instrument to address ICH should be a new Convention.
Accreditation of Advisory Organizations
Authors: Bortolotto Chiara , Neyrinck Jorijn
Published: August 2024

This chapter concerns Article 9 of the 2003 ICHC, which addresses the topic of accreditation of non-governmental organizations (NGOs) to provide advisory services to the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (IGC). It focuses on the NGOs’ role in the international arena. The history of the ICHC is first considered and the main steps towards the involvement of NGOs as recognized actors of this treaty are summarised. The chapter then provides an overview of the diversity of accredited NGOs, and then describes the establishment and functioning of the ICH NGO Forum. Following this, the chapter highlights how the Forum has contributed to changing the way the accredited NGOs structure their engagement with the ICHC. Finally, this chapter addresses the process of domestication to UNESCO rules, language, and procedures.
The Role of the Secretariat in the Implementation of the Convention
Authors: Duvelle Cécile
Published: August 2024

This chapter examines the role of the Secretariat of the 2003 Convention through Article 10. It considers how vaguely described this role is in the Convention and reflects on the concrete work of the Secretariat. The chapter shows that the Secretariat is being required to perform a number of functions, some of which are of a very substantive nature and guide the interpretation and implementation of the Convention worldwide, with the notable exception of the nomination process, where the Secretariat is asked to fulfil a strict technical role. The Secretariat is also facing a clear mismatch between the numerous expectations of Member States and its human and financial resources. These two aspects of the work of the Secretariat are in constant tension, as the means devoted to the Secretariat are not adequate to cover both. Thus, there is a crucial need for the governing bodies to prioritise, and to assume all the related consequences.
Ethical and Legal Considerations in Researching, Documenting, and Ensuring Access to Intangible Cultural Heritage
Authors: Stefano Michelle L , Wendland Wend
Published: August 2024

This chapter focuses on ethical and legal issues that arise with respect to the actions outlined in Article 13, ‘Other measures for safeguarding’, that States Parties are recommended to take as part of wider efforts to safeguard and promote ICH in their territories. The phrase ‘other measures’ references the preceding article, which is dedicated to the one and only ‘measure’ that States Parties are required to follow after ratifying the convention: the creation of an ‘inventory’, or inventories, of ICH that is ‘present in their respective territories’. As such, Article 13 shines a light on other, non-inventorying activities that can be undertaken by States Parties to ‘ensure the safeguarding, development and promotion’ of ICH. It suggests activities that are certainly wide in scope. It can be argued that at their core, the key steps of researching, documenting, and ensuring access to ICH are what tie them together.
Participation of Communities, Groups, and IndividualsParticipation and Democracy
Authors: Soggetti Gabriele D’amico
Published: August 2024

This chapter provides further commentary on Article 15. It first focuses on the essentials of the ICH with an outline of the drafting history of Article, its Operational Directives. as well as its periodic reports. The chapter next argues that there is an essential tension between the (universalist, inclusive, and human rights-based) spirit of Article 15 and the modern notion of State sovereignty and administrative discretion. Managing cultural heritage always involves selecting certain narratives, favouring specific values or meanings among the many embedded in a single heritage. For this reason, participation is always a challenge to political (and therefore State) powers. The chapter proposes that this tension may find a resolution within the understanding of the human rights/sustainable development framework in which such conflicts are supposed to find a form of theoretical management. Afterward, the focus turns to concrete mechanisms through which participation can actually work and suggests a working distinction between groups and communities. To conclude, this chapter offers some general remarks in support of the spirit of Article 15 and of its concrete realization in the current worldwide realities which heritages are presently facing.
Reports by the States Parties and the Committee
Authors: Blake Janet , Nafziger James A R
Published: August 2024

This chapter concerns reports by the States Parties and by the Committee, which is a common requirement for many multinational treaties. It shows that a number of challenges have been identified in relation to the periodic reporting mechanism, of which the chief one is the failure of many States Parties to fulfil this obligation either on time or at all. Even when Parties do submit their reports in a timely manner, there is a great variety in the quality of the reporting and the information set provided. Among the weaknesses identified in periodic reporting has been a tendency to focus too heavily on activities alone, without sufficient attention paid to the results of these. The chapter argues that in order to establish a reporting mechanism that allows identification of the impact of safeguarding measures and resulting tends, it is necessary to focus more on a results-based approach in periodic reporting.
Final Clauses
Authors: Shyllon Folarin
Published: August 2024

This chapter looks at Articles 36 to 40 of the 2003 Convention. First, it considers Article 36, which is on denunciation. Denunciation is a procedure initiated unilaterally by a State to terminate its legal commitments under a treaty. Next, this chapter studies Article 37, which adopts the formula common with UNESCO cultural conventions by merely highlighting two important functions of a depository, namely informing members of UNESCO and the United Nations of the deposit of instruments expressing consent to be bound, and of denunciations. Afterward, Article 38’s detailed provisions on amendments is observed. Article 39, on authoritative texts, is given due attention, as the 2003 ICHC adheres to a number of official languages. Finally, Article 40 discusses the registration of the 2003 Convention with the United Nations.
Origins and Universality
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

This chapter describes the conceptual foundations of international human rights protection. It begins by discussing the national origins of human rights. It then turns to the precursors of international human rights protection, covering international minimum standard of treatment of aliens; protection of minorities and prohibition of slave trade; the emergence of international humanitarian law; and the protection of the working population. Next, it describes the UN Charter and the Universal Declaration of Human Rights. This is followed by a discussion of the consequences of internationalizing human rights, covering the recognition of the individual as a subject of international law; impact on the concept of state sovereignty; human rights as a factor shaping international relations; and recognition of the role of non-governmental organisations. The final section addresses the question of whether human rights is a universal concept.
Protection of Human Existence: Right to Life and Subsistence Rights
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

This chapter focuses on the right to life and subsistence rights. The right to life is generally characterized as one of the most fundamental human rights. Despite its name (right to life) it does not guarantee human existence as such. Rather, it protects against deprivation of life by state action or as a consequence of its omissions. Although the right is non-derogable in times of a public emergency, the right to life is not absolute. Access to the basic necessities of life, such as food, shelter, and minimum medical treatment is equally relevant if not even more important for survival in situations where such access is being blocked or where basic goods are simply not available. It follows that the right to life not only as a civil and political right but also as part of economic, social, and cultural rights plays a major role in safeguarding human existence.
Protection During Migration, Forced Displacement, and Flight
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

This chapter discusses the law on liberty of movement in one's own country, migrants, internally displaced persons, and refugees. Migration, forced displacement, and flight have been part of the human experience from the earliest times. From a human rights perspective, people displaced within their own country (called internally displaced persons) and refugees require special protection because they have been deprived of the protection and security normally enjoyed by people who can remain in their homes. Thus, they have specific needs that non-displaced persons do not possess. Even if people move for predominantly voluntary reasons, they might become particularly vulnerable as migrants.
ICC Mediation
Authors: Leoveanu Alina , Erac Andrija
Published: August 2024

Mediation, from the International Court of Arbitration (ICC) perspective, has very much been a matter of evolution, as amicable resolution of disputes has been practiced within the organization for nearly one hundred years. The evolution has been reflected in the nature of disputes that were referred to the ICC, in the rules under which the disputes were administered as well as in the number of cases administered every year. Current ICC Mediation Rules and the practice of the ICC International Centre for ADR give much reason to believe that the future of cross-border mediation is bright. Their soupleness has allowed a growing number of companies from all regions of the world to mediate billions of dollars’ worth of disputes. The complexity of the controversies referred to the ICC has been putting to test the ICC Rules, the parties’ agreements as well as the mediators’ skillfulness. With the new generations of dispute resolution professionals becoming accustomed to mediation thanks to initiatives such as the annual ICC International Commercial Mediation Competition, friendly settlement of disputes, as it was once called, will undoubtedly go farther.
The International Centre for Dispute Resolution’s Mediation Practice and Experience
Authors: Tuchmann Eric P , Frisch Tracey B , Micheli Giovanna , Quiroz Yanett
Published: August 2024

The International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (AAA), continues to focus on the increased utilization of mediation in the international dispute resolution context. The ICDR has placed a greater emphasis on mediation by including language in its Rules promoting the use of mediation and through educating the parties directly about the benefits of mediation. It is the ICDR’s hope that the international community will embrace mediation as a valuable dispute resolution process and that parties will include mediation in their contract clauses and seek out mediation to address disputes. The ICDR is well situated to assist parties in the mediation process, and the ICDR’s International Mediation Procedures, experienced staff and robust panel of international mediators provides support to parties and other participants in ICDR administered mediations. This chapter focuses on the ICDR’s mediation experience and expertise as well as administered mediation generally.
The Growing Importance of Regional Mediation Centres in Asia
Authors: McFadden Danny
Published: August 2024

During the last twenty years modern commercial mediation practice has had an immense impact on the way disputes are resolved in Western countries. Asian jurisdictions such as Hong Kong and Singapore have also introduced this model into their civil justice systems adapting it where necessary to suit local conditions. Many other jurisdictions in the Asia Pacific region are now in the process of creating infrastructure, introducing training and establishing mediation centres to provide commercial entities with the option of mediation to resolve their business disputes. This chapter looks at the background within which these developments are taking place and focuses in particular on China, Hong Kong and Singapore. Exciting new mediation developments in Japan, Korea, Thailand and Indonesia are also discussed including the establishment of new commercial mediation centres in their respective major cities. Furthermore, this chapter will explore the Belt and Road initiative which is already having a significant impact on interstate projects and which will require cross border dispute resolution services. Both new and established mediation centres in Asia are working hard to promote themselves as providers of both commercial and interstate mediation services to Belt and Road countries.
WIPO Mediation
Authors: Wollgast Heike , de Castro Ignacio
Published: August 2024

With offices in Geneva, Switzerland and in Singapore, the WIPO Arbitration and Mediation Center (WIPO Center), established in 1994, is a neutral, international and non-profit dispute resolution provider specialized in intellectual property and related commercial disputes. Developed by leading experts in cross-border dispute settlement, the arbitration, mediation and expert determination procedures offered by the WIPO Center are recognized as particularly appropriate for technology and other disputes involving intellectual property (IP). The WIPO Center maintains a database of over 1500 neutral, independent WIPO mediators, arbitrators and experts globally, skilled in IP and alternative dispute resolution (ADR). In light of the increasing internationalization and complexity of IP transactions, the WIPO Center has experienced a considerable increase in cases submitted to WIPO Mediation in recent years, including court referrals. The subject matter of WIPO cases includes a wide range of IP and related matters. Over 70 per cent of WIPO cases (and over 90 per cent of patent-related WIPO cases) have been international in scope, involving for example technology protected by patents in several jurisdictions in Asia, Europe, and the United States. The WIPO Center pays particular attention to helping parties contain time and cost of mediations conducted under WIPO Rules. This includes the WIPO Center’s assistance to parties in selecting and appointing the mediator, and active case management. WIPO ADR procedures are organized to stimulate positive opportunities for party settlement. To date, 70 per cent of the mediation procedures administered by the WIPO Center have been settled.
Selection of Mediators
Authors: Brower Charles H
Published: August 2024

Selection of mediators represents one of the most important questions for parties involved in international commercial mediation. Although recourse to international commercial mediation has increased in recent years, the number of controversies submitted to international commercial mediation remains fairly low. Observers continue to refer to the incipient nature of the discipline, the absence of an extensive body of practice, and continuing resistance to mediation in geographically important regions, including Europe. It should come as no surprise that users of international commercial mediation will find only a small body of literature addressing selection of mediators, with writers often expressing conflicting or at least different perspectives on important topics. This chapter seeks to distil and to enhance the understanding of mediator-selection practice by examining the qualities that users should consider when choosing international commercial mediators, the processes for gathering information about potential candidates, the processes for vetting shortlisted candidates, and special problems associated with the selection of mediators for international commercial disputes.
Article 13: Signature
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 13 of the Treaty on the Prohibition of Nuclear Weapons, dealing with Signature.
Article 14: Ratification, Acceptance, Approval, or Accession
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 14 of the Treaty on the Prohibition of Nuclear Weapons, dealing with Ratification, Acceptance, Approval, or Accession.
Article 18: Relationship with Other Agreements
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 18 of the Treaty on the Prohibition of Nuclear Weapons, dealing with the relationship with other agreements.
Article 20: Authentic Texts
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 20 of the Treaty on the Prohibition of Nuclear Weapons, dealing with Authentic Texts.
The Subsidiary Sources
Authors: Thirlway Hugh
Published: August 2024

This chapter considers subsidiary sources of international law, i.e. judicial decisions and ‘the teachings of the most highly qualified publicists of the various nations’. A judicial decision, in almost all cases, by definition adds something to the corpus of law on the subject of the dispute: if the law had been crystal clear before the decision, it is reasonable to suppose that the case would never have been fought. On the other hand, it has been suggested that ‘the teachings of the most highly qualified publicists of the various nations’ would only carry weight in so far as they referred back to one of the three principal sources. However, there is now resistance to this view in some scholarly quarters. The suggestion being made is that doctrine may be constitutive of international law.
Interaction or Hierarchy between Sources
Authors: Thirlway Hugh
Published: August 2024

This chapter considers the hierarchy between sources of international law. When two sets of norms are not in agreement, a problem may arise, referred to as the hierarchy of sources. Primarily, this refers to the question whether a norm deriving from one of the recognized sources prevails over a norm from a different source solely for that reason, that is that norms from source A always outrank norms from source B. There is also the possibility that a particular norm, because of its content or nature, has an overriding quality in relation to all other norms. The remainder of the chapter discusses the simultaneous and identical obligations under treaty and under customary law.
The Framework Convention for the Protection of National Minorities: An Introduction
Authors: Hofmann Rainer
Published: August 2024

This introductory chapter provides an overview of the major procedural and some of the general substantive issues raised by, and connected with, the Framework Convention for the Protection of National Minorities (FCNM) at the advent of its second monitoring cycle. Prior to engaging in this analysis, however, it briefly presents the drafting history of the FCNM and its main features. It then discusses the specific character of the FCNM as a ‘Framework’ convention and its consequences, followed by an overview of the monitoring system established during the first cycle of monitoring. It next addresses some general issues relevant during the first cycle of monitoring and that will continue to be of relevance during the second cycle of monitoring. These subjects include: questions relating to the personal and territorial scope of application of the FCNM; the excessive confidentiality of the monitoring process, which results in a lack of transparency; and other thematic issues such as the situation of Roma.
The Framework Convention in Historical and Global Perspective
Authors: Eide Asbjørn
Published: August 2024

This chapter explores some of the issues involved in placing the Framework Convention for the Protection of National Minorities (FCNM) in its historical and its wider international contexts. Topics discussed include the emergence in Europe of an international system of states; the protection to religious minorities in the seventeenth and eighteenth centuries; international co-operation from 1815 to the First World War; the relation of sovereignty and positivism to nationalism and minority issues; establishment of the League of Nations; minority protection in the age of the United Nations; indigenous peoples as a category in need of particular protection; and international and regional co-operation in the area of minority protection.
Article 17
Authors: Jackson-Preece Jennifer
Published: August 2024

This chapter comments on Article 17 of the Framework Convention for the Protection of National Minorities (FCNM). Article 17 consists of two sections. Article 17(1) addresses the circumstances of those ethnic, cultural, religious, or linguistic groups who exist in the territory of more than one state. In so doing, it builds upon prior efforts within the Organization for Security and Co-operation in Europe (OSCE) and the United Nations to protect dispersed and kin minorities. The ability to maintain regular contact with their co-ethnics across state jurisdictions is an essential element of efforts designed to preserve and promote the distinct identity of such transfrontier minorities and the persons belonging to them. Article 17(2) aims to protect the communal life of persons belonging to national minorities by guaranteeing their right to participate in the activities of non-governmental organizations (NGOs). These organizations are vital both for the preservation and promotion of minority identities, and the general development of civil society and democratic values within states.
Article 19
Authors: Hannikainen Lauri
Published: August 2024

This chapter comments on Article 19 of the Framework Convention for the Protection of National Minorities (FCNM). Article 19 deals with the question of making limitations to, or derogations from, the FCNM. It links the Convention to other human rights instruments, bringing its interpretations in line with them. The purpose of this article is clear: only limitations, restrictions, and derogations of the provisions of the Convention having a legitimate source in other human rights instruments are permitted. The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) has been given primacy, in this regard. Article 19 may be referred to occasionally in the comments of the monitoring organs of the Framework Convention. If a crisis were to emerge in a territory populated by a national minority; if the state in question resorted to limitations and/or derogations jeopardizing international standards; and if they were directed to members of this territorial minority in particular, it seems natural that the monitoring organs of the Framework Convention would intervene on their behalf, necessitating the use of Article 19.
Articles 24–26
Authors: Topidi Kyriaki
Published: August 2024

This chapter comments on Articles 24–26 of the Framework Convention for the Protection of National Minorities (FCNM). Articles 24–26 lay out the monitoring mechanism of the FCNM. More specifically, Article 24 designates the Committee of Ministers (CoM) as the competent body for monitoring the implementation by states parties of the Framework Convention. Article 26 however, states that the CoM is not the sole body that evaluates the adequacy of measures taken by a state party. It is assisted by an Advisory Committee (AC), which ensures monitoring efficiency. The monitoring procedure is completed under Article 25, requiring states parties to submit a report providing full information on legislative and other measures giving effect to the Framework Convention within one year of its entry into force for each state.
The International Convention on the Elimination of All Forms of Racial Discrimination
Authors: Thornberry Patrick
Published: August 2024

The Convention on the Elimination of All Forms of Racial Discrimination is the centrepiece of international efforts to address racial discrimination, defined in broad terms to include discrimination based on skin colour, descent, ethnic, and national origin. Victims of discrimination within the scope of the Convention include minorities, indigenous peoples, non-citizens, and caste or descent groups. Virtually all national societies are diverse in terms of ethnicity or ‘race’ and none is free from discrimination, making it one of the great issues of our time. Against the background of international human rights standards and mechanisms to counter racial and ethnic discrimination, this book provides the first comprehensive legal analysis of the provisions of the Convention on an article-by-article basis. The book addresses the place of the Convention within the broader framework of United Nation’s action against discrimination. The different chapters analyse and discuss broad topics of race, ethnicity, and international law, the genesis and drafting of the Convention, the aims and objectives of the Convention in light of its preamble, and principles of non-discrimination and equality. In particular, the book includes a critical appraisal of the contribution of the Convention to the eradication of racial discrimination. It also reflects on whether there is scope for modification of the substance or procedures of the Convention in light of challenges arising from enhanced transnational population movements, the intersection between discrimination on the ground of race and discrimination against religious communities, and the intersection of racial and gender-based discrimination.
Article 1
Authors: Thornberry Patrick
Published: August 2024

This chapter focuses on the definition of racial discrimination in paragraph 1 of Article 1. ‘Discrimination’ is a term that may be used in positive, neutral, or negative senses. The definition of discrimination in ICERD and elsewhere in international human rights is essentially negative: unjust or unfair discrimination against a persons or group/category of persons. The injustice or detriment associated with discrimination is calibrated in terms of ‘nullifying or impairing’ the recognition, etc., ‘on an equal footing’ of human rights. In order to find discrimination that affects individuals or groups under Article 1, it needs to be established that individuals or groups are subject to distinctions, etc. ‘based on’ race, colour, etc.
Article 1, Paragraphs 2 and 3
Authors: Thornberry Patrick
Published: August 2024

This chapter discusses the limitations on the reach of the definition in paragraphs 2 and 3 of Article I. It notes that the definition of discrimination in ICERD appears to be significantly narrowed by the two paragraphs, which, like Article 1(1), apply to the Convention as a whole. Taken at face value, the language of the two paragraphs appears to undermine the universalist ambition of a text. However, despite the apparent limitations placed by the text of the Convention on concern for non-citizens, there is little appreciable difference between their treatment and the treatment of other groups by the Committee as victims of discrimination. Practice with respect to non-citizens encompasses all the rights listed or implied in the Convention.
Article 5
Authors: Thornberry Patrick
Published: August 2024

This chapter details the provisions for paragraphs (a) to (d) of Article 5. It reviews the article’s chapeau before turning to the minutiae of Article 5(a), which refers to the right to equal treatment before tribunals and all other organs administering justice. Next, paragraph (b) explores the right to security of the person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution. Article 5(c) covers rights of political participation—in elections, government, public affairs, and public service. Finally, paragraph (d) details other civil rights, such as the right to freedom of movement and residence; international travel; nationality; marriage and choice of spouse; ownership of property; inheritance; freedom of thought, conscience, and religion; freedom of opinion and expression; and freedom of peaceful assembly and association.
Article 7
Authors: Thornberry Patrick
Published: August 2024

This chapter concerns the use of education in combating discrimination, as discussed in Article 7. The primary focus of Article 7 is on the aims and objectives to be pursued by ‘teaching, education, culture and information’, and the modalities for achieving them. In terms of the structure of ICERD, whereas the protection from discrimination in Article 5 encompasses ‘the right to education and training’ and ‘the right to equal participation in cultural activities’—reflecting broad-based rights recognized throughout a range of international human rights instruments—the obligations in Article 7 have a distinctive focus. The highlighted fields of activity and other relevant but unnamed ‘fields’ must be directed to combat prejudices which lead to racial discrimination, promoting understanding and tolerance, and propagating human rights, including the Convention. In this light, Article 7 makes its own contribution to world programmes for human rights education and similar initiatives.
Article 22
Authors: Thornberry Patrick
Published: August 2024

This chapter discusses the role of the International Court of Justice (ICJ) in settling disputes, as defined by Article 22 of the Convention. This article has been cited as a basis for ICJ jurisdiction in key cases before the ICJ. In particular, the chapter notes how the Georgia v Russian Federation case is the first and only case before the ICJ to focus exclusively on the interpretation of the Convention. The interrogation by the Court of the meaning to be attributed to Article 22 in Georgia v Russian Federation is notable for its complex of interpretative approaches towards international instruments, including human rights instruments—the canons of interpretation invoked by majorities and minorities, often to contradictory effect. If Georgia v Russian Federation demonstrates anything regarding the meaning of the Convention, it is that text and travaux signpost interpretative directions but are unlikely to be fully determinative.
The Convention on the Elimination of All Forms of Racial Discrimination
Authors: Thornberry Patrick
Published: August 2024

This concluding chapter offers some concluding reflections on the development of the ICERD in the years since its inception. It looks back on the history of the Convention and also attempts to understand the challenges emanating from the early twenty-first century environment as the principal guide to future developments. Over the years, the Convention has transmitted and further defined the humanitarian message of the UN Charter and the Universal Declaration of Human Rights (UDHR) and stands secure in the firmament of UN human rights instruments. The principles of the Convention are widely accepted as representing conduct prohibited by customary international law and even, at least in gross or systematic forms, Jus cogens. Additionally, the chapter turns to the limitations of the ICERD’s work in eliminating discrimination, and offers insights for the continuing efforts for a dignified ordering of human affairs.
Allocating and Balancing Foreign Relations Powers
Authors: Murphy Sean D , Swaine Edward T
Published: August 2024

Chapter 1 introduces the field of U.S. foreign relations law by considering how the U.S. Constitution allocates foreign relations powers among the key players—namely, Congress, the president, the courts, and the states—while also leaving important powers unresolved and free for sharing or contestation. It also explains the balancing of these powers and limits on their exercise, such as through the checks available to Congress and the courts on the president’s foreign relations actions, the powers reserved to the several states, and the rights possessed by individuals. The chapter concludes with a review of how national crises or emergencies impact the analysis, pondering whether special latitude should be given to the federal government during such periods and what emergency powers imply for constitutional democracy.
Customary International Law
Authors: Murphy Sean D , Swaine Edward T
Published: August 2024

Chapter 5 explains how customary international law is incorporated into U.S. law. It begins by exploring how U.S. views regarding the role of customary international law in the constitutional scheme appear to have evolved over time, starting from a deep-seated commitment to a degree of contemporary ambivalence about the role of federal common law. The chapter examines the legislative, executive, and judicial incorporation of customary international law, both in terms of its constitutional grounding and considering present practice. It also discusses limits to the incorporation of customary international law into U.S. law, reviewing the relationship of customary international law with the U.S. Constitution, federal law, treaties, and executive branch conduct. The chapter concludes with examples of customary international law’s contemporary treatment in the contexts of piracy, terrorism, and human rights.
Treaties and Other International Agreements
Authors: Murphy Sean D , Swaine Edward T
Published: August 2024

Chapter 6 discusses the range of contemporary legal issues that arise in connection with the treaty power in Article II of the U.S. Constitution and other means by which the United States enters into international agreements. The chapter examines the historical emergence of the treaty power, from pre-constitutional experience to constitutional design and subsequent history. It then describes the process of making treaties—looking to the dictates of international law, Article II, and other constitutional limitations—from beginning to end, noting too the different obligations that arise prior to entry into force. It also surveys methods of treaty interpretation, beginning with international legal principles and discussing the deference that U.S. courts give to the executive branch, the Senate, and international tribunals in interpreting treaties. It discusses the complex process by which treaties are incorporated into U.S. law, including both the complexity of treaty self-execution and other forms of domestic implementation, before describing how conflicts between treaties and constitutional, federal, international, and state and local law are resolved. The chapter reviews nontreaty forms of international agreements, such as congressional-executive, executive, and nonbinding agreements, and it explains treaty termination and similar means for exiting treaties.
Adoption of the Convention
Authors: Schabas William A
Published: August 2024

This chapter presents the story behind the adoption of the European Convention on Human Rights (ECHR). The Convention was drafted in 1950 by the Committee of Experts set up by the Council of Europe's Committee of Ministers. The Convention was signed by the Member States of the Council of Europe on November 4, 1950, in the Barberini Palace in Rome. Later that month, Greece and Sweden also signed the Convention. The first ratification, by the United Kingdom, was submitted on March 8, 1951. On September 3, 1953, Luxembourg became the tenth State to ratify the Convention, bringing with it the entry into force of treaty. With the Convention in force, the Committee of Ministers elected the initial members of the European Commission of Human Rights in May 1954.
Adding new rights to the Convention
Authors: Schabas William A
Published: August 2024

Since the adoption of the European Convention, the catalogue of substantive rights that it sets out has been supplemented by six protocols. The six protocols are additional in nature in that they require ratification by States that are already party to the Convention. They do not amend the Convention as such. They have entered into force after acceptance by a relatively limited number of States Parties. This chapter describes the six protocols. Protocol No. 1, adopted in March 1952, added three rights to the Convention system: right to property, the rights of parents with respect to the education of their children, and the right to free elections. Protocol No. 4, which entered into force on May 2, 1968, deals with the right of movement and migration. Protocols No. 6 and 13 are concerned with capital punishment. Protocol No. 7 addresses concordance with the International Covenant on Civil and Political Rights while Protocol No. 12 includes provisions on non-discrimination.
Interpretation of the Convention
Authors: Schabas William A
Published: August 2024

This chapter considers the various interpretative approaches to the European Convention on Human Rights that have been adopted in case law. It first explains the rules of treaty interpretation applied by international courts and tribunals that were codified in the Vienna Convention on the Law of Treaties. It then discusses the respect for precedent; the Court's insistence that ‘the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions’; the dynamic and evolutive interpretation; and the need to construe the provisions of the Convention in the light of their object and purpose and also in accordance with the principle of effectiveness.
Preamble/Préambule
Authors: Schabas William A
Published: August 2024

This chapter presents the Preamble of the European Convention on Human Rights. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.