bluuebunny/crossref_metadata_2025 huggingface dataset:
The Doctrine of Res Judicata in International Law
Authors: Schaffstein Silja
Published: June 2017

This chapter discusses how international law deals with the problems of multiple proceedings and conflicting judgments concerning the doctrine of res judicata. In international law, the problem is handled differently depending on whether it arises in the private or public international law context. In private international law, the problem has long been resolved by domestic private international law acts and various bilateral conventions. In Europe, the Brussels I Regulation seeks to avoid these problems among Member States by unifying rules on jurisdiction and the recognition and enforcement of judgments. On the other hand, in public international law, a uniform doctrine of res judicata has been developed on the basis of domestic res judicata rules.
The Terrorism Acts and Conspiracy
Authors: Fortson Rudi
Published: June 2017

This chapter looks at acts of terrorism and the issue of conspiracy. It starts by defining ‘terrorism’ and looking at various acts of terrorism and the history of terrorism and how the latter relates to money laundering. It then considers money laundering offences in particular and conspiracy to commit such offences. It looks at the example of the Salik case. In relation to this case, it considers the issue of property identified versus property not identified. It concludes this section of the chapter by looking at the implications of the Salik case. This discussion leads to the question: is knowledge relevant if the defendant intended to commit a crime?
UK Sanctions Regimes
Authors: Tzanakopoulos Antonios
Published: June 2017

There are two principle sources of sanctions regimes applicable to the UK, this chapter shows: those of the European Union (EU) and the United Nations (UN). The chapter first looks at the EU regime. The EU operates thirty-eight different sanctions regimes as of May 2016. They are of two types: regimes designed to implement UN-mandated sanctions regimes; and the EU’s autonomous sanctions regimes. Current EU policy on sanctions has been continuously updated. As the EU Basic Principles make clear, the EU looks principally to the UN Security Council as the source of sanctions. The UK sanctions regimes, which give effect to UN sanctions regimes, are principally introduced for three purposes: to legislate in the absence of EU competence (for example to introduce financial sanctions against so-called ‘domestic’ terrorists); to give effect to EU regimes (for example to impose penalties for failure to comply with obligations introduced by means of an EU Regulation); and to introduce measures ahead of an EU regime (where by acting unilaterally, the UK can act more speedily) or even independently.
Investigations and Remedies under POCA 2002
Authors: Peddie Jonathan
Published: June 2017

This chapter considers the means by which financial institutions are most frequently required to provide assistance in the investigation and enforcement process under the Proceeds of Crime Act 2002 (POCA 2002). The powers created under Part 8 of POCA 2002 are very broad and, from a bank’s perspective, some have greater relevance than others. Whilst the technical aspects of orders under Part 8 are considered in some depth in this chapter, many other sources dissect the relevant sections of the Act in greater detail or analyse the wider implications of all aspects of the POCA regime. The purpose of this chapter is to provide insights into the practical application of the legislation within a particular commercial sector. This chapter therefore considers those parts of POCA 2002 which present the greatest challenges for banks and seeks to highlight certain themes and principles which have emerged following its enactment.
Extraterritorial Application of US Law
Authors: Dinh Viet D , Wold Megan M
Published: June 2017

U.S. laws related to tainted money often create an impact beyond U.S. territory. This extraterritoriality occurs in two ways: firstly, formal extraterritoriality, meaning the direct application in a U.S. court of U.S. law to activities taking place partly or entirely outside of the U.S.; and, secondly, informal extraterritoriality, meaning indirect effects of U.S. law felt outside of the U.S. but without the application of any U.S. statute or the participation of any U.S. court. This chapter discusses both types of extraterritoriality. First, it presents the conditions of formal extraterritoriality by outlining the principles by which U.S. courts determine whether a particular U.S. statute applies outside the United States. Second, the chapter considers the elements of informal extraterritoriality by describing the types of extraterritorial effects U.S. law may have even when not directly applied to extraterritorial activities. Third, this chapter describes several specific U.S. laws that commonly have extraterritorial applications and/or effects. And finally, the chapter concludes with a brief analysis of extraterritorial applications of foreign law within the U.S. Although not specifically contemplated by the title of this chapter, this discussion pertains to the fundamental reciprocity analysis that governs formal extraterritoriality in the U.S.
Virtual Currencies, Artificial Intelligence, and Emerging Legal Questions
Authors: Firth-Butterfield Kay , Brent Richard , Grant Tom
Published: June 2017

This chapter provides a background to technologies such as the distributed ledger (e.g., blockchain) that underlie virtual currencies such as Bitcoin. It also considers the concept-or range of concepts-that the expression ‘Artificial Intelligence’ (AI) denotes. The chapter then presents an overview of legislation and regulation adopted to date as relevant to virtual currencies in the UK, EU, and U.S. and of policy statements suggesting the near-term course that legislation might take. Turning to private law, the chapter considers issues that Bitcoin raises in relation to private law claims. Finally, it finishes by considering wider legal and societal issues entailed by the interplay of virtual currencies, AI, and financial crime.
Introduction
Authors: Azaria Danae
Published: June 2017

Chapter 1 illustrates the importance of means of transportation in the development of international law, and the modern relevance of transit of energy via pipelines in this respect. The chapter sets the framework and method used in the study. Key concepts (transit, energy, and pipelines) and the scope of application of the treaties (ratione loci and ratione materiae) examined in the study are explained. It explains the rules of treaty interpretation that are used in the study for determining the scope and content of obligations regarding transit of energy, for identifying the nature of these obligations with a view to establishing standing to invoke international responsibility in case of their breach, and for determining the relationship between treaty rules and customary international law. It focuses on the role of subsequent agreements and practice, which is extensively used in this study as a means of treaty interpretation. The elements of an internationally wrongful act are then discussed. Emphasis is placed on attribution of conduct of private entities, and on the dual function of countermeasures under the law of international responsibility.
Responses to Breaches under the Law of Treaties
Authors: Azaria Danae
Published: June 2017

Chapter 5 addresses unilateral treaty law responses available to treaty parties against breaches of transit obligations therein, and examines whether the exceptio non adimpleti contractus has a separate existence to the rule concerning responses to material breaches under the law of treaties. It illustrates that there may be special rules in treaties that displace treaty law responses under customary international law. The analysis distinguishes treaty law responses (and the exceptio non adimpleti contractus) from countermeasures. It demonstrates that even though unilateral responses under the law of treaties may be available to treaty parties other than the defaulting transit treaty party in response to a material breach of the treaty establishing transit of energy obligations (or non-performance may as a matter of treaty interpretation be allowed by virtue of the exceptio), these do not overlap and do not exclude countermeasures under the law of international responsibility.
Personal and Property Rights
Authors: Bamford Colin
Published: June 2017

The chapter explores the differences between property rights and rights that can be enforced only by action against a person. It contrasts the position in common law systems with that in civil law countries. The common law system is explained by looking at the development of equity and of the concepts of equitable ownership and of the trust. The chapter then examines the distinction by reference to case law, particularly in relation to the mechanism of charge-backs. It then argues that the approach adopted by the common law is particularly well suited to the needs of financial transactions, in syndicated lending, bond issues project financing fund management and in allowing flexibility in the structuring of complex security arrangements.
Contract Formation
Authors: Furmston Michael , Tolhurst Gregory
Published: June 2017

This text provides a scholarly and practical analysis of the legal principles which govern the formation of contracts in English law, offering those involved in litigation and in drafting contracts a guide to the application of those principles in practice. The book reviews all the classical rules governing contract formation with extensive coverage of difficult areas such as certainty, conditional contracts, good faith negotiations, auctions, tenders, on-line contracting and the assessment of conduct and silence in contract formation. It also discusses the efficacy, problems and rules around modern contracting, in particular the use of heads of agreement, letters of intent, letters of comfort and the methods of resolving a battle of the forms. In this second edition a chapter has been added on consideration and estoppel. Although this work is based on English law, the text draws upon decisions in other jurisdictions such as Australia, Canada, the United States, Singapore and New Zealand, where these inform the development of principles in English law.
Formation and the Concept of Agreement
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter provides an overview of the objective theory of contract and the concept of agreement. The objective theory dictates that when determining whether or not a statement made by a person was intended to form the basis of a contract, it is construed by reference to a reasonable person in the position of the party to whom the statement is directed. Thus, when trying to determine whether a statement was intended to be an offer, it is construed by reference to a reasonable person in the position of the offeree. An agreement requires that the parties agree the terms of bargain, that those terms be certain and complete, and that the bargain is informed by an intention to contract as well as an intention to immediately assume legal obligations. The final section discusses whether contract formation is an issue of fact or law.
The EC Regulation on Insolvency Proceedings
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

The chapter discusses instances where the restructuring plan demands that the debtor be made subject to a formal insolvency system. The applicable laws are determined in accordance with the EC Regulation on Insolvency Proceedings if the debtor has its centre of main interests (COMI) in one EU Member State and assets in another Member State. If the COMIs of individual group companies are situated in the same Member State, the EC Regulation can be used to group together the administration of group insolvencies, or once the recast EC Regulation comes into force, to implement voluntary group coordinator proceedings. Any restructuring plan may include moving a debtor’s COMI to take advantage of a more flexible insolvency regime. This chapter describes the framework and key features of the EC Regulation including the concept of COMI, its application to group insolvencies, ‘COMI shifting’, and the provisions of the recast EC Regulation.
An Introduction to Sovereign Debt Restructuring
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter starts by introducing the Brady Plan which aimed to address the debt crisis that occurred in the developing countries during the 1980s. The chapter also looks at new developments which have taken place in the area of sovereign debt restructuring since the Brady Plan. These are the EU sovereign debt crisis, and the ongoing Argentine litigation in New York. The former is a debt crisis that was originated in Greece in late 2009 and has been taking place in other Euro-areas ever since and has affected Portugal, Ireland, Spain, and Cyprus. The ongoing Argentine litigation in New York relates to a claim initiated by a hedge fund to collect on defaulted debt obligations issued by Argentina based on the breach of the pari passu clause. The pari passu clause is a standard clause in public or private international unsecured debt obligations.
Litigation Aspects of Sovereign Debt
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter starts the study of litigation aspects of a sovereign debt by looking at the effect of a disruption in the economy in terms of legal options for recovery. The chapter also looks at the pari passu clause in sovereign debt instruments. A pari passu clause is a standard clause included in public or private international unsecured debt obligations (syndicated loan agreements and bond issuances). From a close reading of the clause, it can be argued that it has two limbs: firstly, an internal limb, ie that the bonds will rank pari passu with each other; and, secondly, an external limb, ie that the bonds will rank pari passu with other unsecured (present or future) indebtedness of the issuer. Not all pari passu clauses are drafted in the same way, and they will vary according to the drafter. The chapter considers various relevant cases.
Loan Transfers, Securitisation, and Structured Finance
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 12 concerns loan transfers, securitization, and structured finance.
Equipment Finance
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 15 is concerned with equipment finance.
National Report for Mexico
Authors: Sánchez-Mejorada y Velasco Carlos
Published: June 2017

This chapter discusses the law on creditor claims in Mexico. Insolvency proceedings in Mexico aim for an orderly liquidation procedure of all of the bankrupt’s assets to allow an equally orderly distribution of proceeds among creditors under the principle of par conditio creditorum (equal treatment for all creditors). Ideally, the body of law regulating this procedure should match the insolvency law of each country, so that the process can be effected congruently and logically. However, social policies and other commercial considerations have created systems of priorities in asset distribution that vary from country to country as a function of the policies of each. In many cases, the only commonality in all systems is that ordinary unsecured creditors collect last, if at all. Mexico is no exception, specifically in the treatment of claims arising out of a labour relationship, which in turn is derived from the overly protective and outdated regime established by the federal constitution for workers. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section examines: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
Introduction
Authors: Boothby William H
Published: June 2017

This relatively brief chapter introduces the book as a whole. It positions weapons law within the framework of international law in general, and of the law of armed conflict in particular, noting the important distinctions between international and non-international armed conflicts, and between the law on the resort to the use of force and that which regulates the conduct of hostilities. The logical flow of the book is presented, and certain terms that are vital to the ensuing discussion, namely weapons, means of warfare and methods of warfare are explained. The all-important distinction between weapons law and the legal rules that regulate targeting is noted. A concluding section addresses the recently-adopted Arms Trade Treaty.
The Evolution of the Law of Weaponry
Authors: Boothby William H
Published: June 2017

Chapter 2 explains how from its roots in the middle part of the nineteenth century, weapons law has developed during the ensuing one hundred and sixty years into the more comprehensive but still incomplete body of law we have today. The evolution of early treaties such as the St Petersburg Declaration of 1868, certain Regulations and Declarations made in The Hague in 1899 and 1907, and the Geneva Gas protocol of 1925 is explained by reference to the authoritative writings of contemporary experts and jurists. The significance of those early writings in inspiring the development of core principles that lie at the heart of this body of law is noted. The picture that emerges is of a body of law that responds, sometimes belatedly, to battlefield events. The emergence of more modern law in the form, for example, of arms control treaties addressing chemical weapons, biological weapons, anti-personnel landmines and cluster munitions is charted.
Customary Principles—Indiscriminate Weapons
Authors: Boothby William H
Published: June 2017

This chapter traces the evolution of the principle discrimination in the law of armed conflict. It also examines its current formulation in the law, and considers its status in customary law. The targeting law and weapons law elements of the discrimination principle are disentangled; it is noted that the weapons law element had not been specifically articulated before 1977 and the implications of this are discussed. The relevance and interpretation of the now customary prohibition of weapons that are by nature indiscriminate are explained. The language of article 51(4) of Additional Protocol 1 is discussed and the terms of the corresponding customary rule are analysed. The applicability of the rule to nuclear weapons is also set forth. Examples of the kinds of weapon that are considered to breach the rule are given.
Weapons and the Environment
Authors: Boothby William H
Published: June 2017

This chapter examines the treaty-based rules under the law of armed conflict with regard to the impact of warfare on the environment. It starts by tracing how such rules emerged noting the Lieber Code’s prohibition of the use of poison and of wanton devastation and the 1907 Hague prohibition of destruction and seizure of the enemy’s property, unless it is imperatively demanded by the necessities of war. Interpretation of these rules as applying to the environment is considered. The substantive law applying to the environment, namely articles 35(3) and 55 of Additional Protocol 1 and the UN Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 1976 (ENMOD) are then each addressed in discrete sections of the chapter and the important differences between these provisions are noted.
Rules Relating to Other Specific Technologies
Authors: Boothby William H
Published: June 2017

This chapter considers the types of weapon that are the subject of certain specific Protocols under the CCW. The text of each of these CCW Protocols is analysed to determine the range of weapons and activities covered by the instrument and to interpret the obligations that the Protocol introduces. The first Protocol discussed is the Protocol on Non-Detectable Fragments, which prohibits the use of any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays. The chapter then turns to the Incendiary Weapons Protocol, which prohibits certain activities altogether while limiting the circumstances in which others may be lawfully undertaken. The discussion concludes with an overview of the Laser Weapons Protocol, whose main operative provision is to prohibit the employment of laser weapons specifically designed as a combat function to cause permanent blindness to unenhanced vision.
Maritime and Outer Space Weapons
Authors: Boothby William H
Published: June 2017

This chapter explores the law of armed conflict with regard to the weapons used in sea warfare. It addresses automatic contact mines, nuclear mines, submarines, missiles, and torpedoes. Relevant elements of the treaties of 1907, of instruments adopted in 1930 and 1936, of the writings of experts and in particular of the San Remo Manual and of the UK Manual are considered in relation to each class of weapon. A discrete section looks at weapons in outer space, noting the application of international law to outer space by virtue of article III of the Outer Space Treaty, and the important provisions of article IV of that treaty. The issues that a reviewer of an outer space weapon would need to consider are set forth in that section.
Technology, Humanitarian Concern, and the Future
Authors: Boothby William H
Published: June 2017

This concluding chapter considers two additional dimensions to weapons law, namely, technology and humanitarian concern. It also addresses the prospects for future progress in this field of law. The chapter explains how humanitarian concern inspired past developments in weapons law and will likely have a similar effect in the future. It is noted that humanitarian concern alone is no guarantee that a new treaty will emerge, and the critical factors that determine success or failure in such initiatives are outlined. The growing importance of NGOs and other groups in the inspiration of new weapons law developments is noted, but the chapter concludes that States are and will likely remain at the core of the law of armed conflict and of its development. The chapter ends by seeking to draw some general conclusions from the analysis in the preceding chapters of the book.
The EU and the Fight against Organised Crime
Authors: Hecker Bernd
Published: June 2017

The effective prevention of and the fight against all types of transnational organised crime (TOC) has been one of the biggest challenges to the criminal policy of the EU for decades. In this connection, the EU and its member states are facing the task of striking an equitable balance between the interest in ensuring an effective criminal justice system on one hand, and the protection of civil rights that the rule of law offers on the other. On the basis of the EU strategies and programmes to create an area of freedom, security, and justice, this chapter retraces the development of European criminal law in relation to TOC. It shows that the acquis communautaire now attained comprises a multiplicity of legal instruments aiming at the protection of European society and its economies from organised crime.
Transnational Organised Crime and Terrorism
Authors: Weißer Bettina
Published: June 2017

Traditionally, organised crime and terrorism were understood as offences that exclude one another mutually. While a core element of terrorist crimes is the use of violence, organised crime does not necessarily involve violence. The characteristic element of transnational organised crime (TOC) on the other hand is the perpetrator’s aim to generate (illicit) profits. This chapter argues that nowadays this formerly clear distinction becomes more and more outdated: the line between terrorism and TOC becomes blurred since terrorist organisations seek to finance their activities by an engagement on the field of organised crime. Starting with a brief sketch of the historical evolution of terrorism, the chapter outlines the defining elements of terrorist crimes under international law and also describes remaining definitional problems. Links between TOC and terrorism are highlighted—they generate a growing nexus between the two phenomena.
The UN Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components, and Ammunition 2001
Authors: Fellmeth Aaron X
Published: June 2017

This chapter analyses the background and provisions of the Firearms Protocol. It begins by describing the problem of global trade in small firearms and light weapons to criminal organisations, and outlines international efforts before 2000 to subject the arms trade to formal and informal forms of international and regional regulation. It then summarizes the negotiating history of the Protocol and the provisions of the Protocol as finally adopted by the UN General Assembly, including the travaux préparatoires relating to the most controversial and important provisions. It then discusses the steps taken by the parties to the Protocol to implement it through domestic legislation and international cooperation. The chapter ends with a summary of the major global and regional developments in small arms trade regulation that have supplemented or built upon the Protocol, such as the UN Arms Trade Treaty.
Transnational Organised Crime and the Anti-Money Laundering Regime
Authors: de Koker Louis , Turkington Mark
Published: June 2017

This chapter considers the employment of the global anti-money laundering strategy to combat organised crime. It provides perspectives in the development of the strategy and its elements, also drawing on the first compliance and effectiveness mutual evaluation reports emerging from the post-2012 round of Financial Action Task Force-related peer reviews. The discussion closes with questions regarding the effectiveness of the strategy and the authors take the position that the new set of mutual evaluation reports may not provide conclusive answers.
Transnational Organised Crime and Cultural Property
Authors: Kretschmer Bernhard
Published: June 2017

Global demand for art and historical artefacts makes them attractive for international crime. A diverse array of offences includes robbery/theft, illicit excavation, illicit import and export, forgery, fraud, and dealing in stolen goods. Cultural objects are also at risk of destruction and pillage in armed conflicts, offences treated as war crimes. The international community has long endeavoured to develop instruments to improve protection of cultural property. These efforts include, for armed conflicts, the Regulations concerning the Laws and Customs of War on Land, the 1954 Hague Convention and the Rome Statute and, for illegal trade, the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. Despite all these efforts, there is still room for improvement, and in particular to strengthen international cooperation among law enforcement agencies and authorities for protecting cultural property. International organisations like Interpol and UNESCO play a key role in this regard as driving forces and intermediaries.
Transnational Organised Crime and Cybercrime
Authors: Brodowski Dominik
Published: June 2017

Cybercrime has not only become a new form of organised crime, in which a network of independent perpetrators cooperate on a case-by-case basis without an enduring, hierarchical structure, but is also gaining increasing attention from traditional organised crime groups. With cybercrime easily crossing geographical borders, a closer look at the international law framework on the fight against cybercrime is warranted, including but not limited to the Council of Europe Convention on Cybercrime. This chapter focuses on cyber-related aspects of substantive criminal law, criminal procedure, and jurisdiction, as well as an analysis of the core challenges and typical phenomena of cybercrime.
Law of the Sea and Transnational Organised Crime
Authors: Proelss Alexander , Hofmann Tobias
Published: June 2017

A decade ago, the High Level Panel on Threats, Challenges, and Change identified transnational organised crime (TOC) as one of the six clusters of threats that the international community has to face in the twenty-first century, thus recognizing and highlighting how important the suppression of TOC is for a more secure world. This chapter outlines the pertinent legal framework provided by the international law of the sea, sets out the circumstances under which states are entitled to exercise jurisdiction over foreign ships, and addresses many of the highly sensitive issues surrounding shipping interdiction. It argues that the international law of the sea establishes a legal framework for cooperation that, on one hand, sets comparatively narrow limits for unilateral enforcement measures, but at the same time leaves sufficient room for flexibility in respect of bilateral and multilateral approaches addressing the interdiction of suspected vessels.
Transnational Organised Crime and International Criminal Law
Authors: Hauck Pierre
Published: June 2017

At first sight, transnational organised crime (TOC) and international criminal law (ICL) are completely separate: the four ICL core crimes constitute the most heinous crimes, committed by political and military leaders of armed conflicts, whereas TOC as lower-level deviance being committed by private individuals falls short of that. This chapter takes a closer look at this relationship and discovers the lines between these two areas to be blurred: because, as international crimes, they have already been discussed in that context (e.g. while drafting the Rome Statute), and nowadays TOC can even amount to one of the four core crimes de lege lata in individual cases. Apart from that, TOC can also evolve into international crimes de lege ferenda once universal jurisdiction can be established. The chapter concludes that although TOC typically characterizes crime that is different to the four core ICL crimes, both areas approximate greatly in different ways.
Policing TOC—The National Perspective
Authors: Brady Sheelagh
Published: June 2017

At first sight, transnational organised crime (TOC) and international criminal law (ICL) are completely separate: the four ICL core crimes constitute the most heinous crimes, committed by political and military leaders of armed conflicts, whereas TOC as lower-level deviance being committed by private individuals falls short of that. This chapter takes a closer look at this relationship and discovers the lines between these two areas to be blurred: because, as international crimes, they have already been discussed in that context (e.g. while drafting the Rome Statute), and nowadays TOC can even amount to one of the four core crimes de lege lata in individual cases. Apart from that, TOC can also evolve into international crimes de lege ferenda once universal jurisdiction can be established. The chapter concludes that although TOC typically characterizes crime that is different to the four core ICL crimes, both areas approximate greatly in different ways.
Policing Transnational Organised Crime—The International Perspective
Authors: Madsen Frank G
Published: June 2017

This chapter examines international cooperation in the fight against transnational organised crime (TOC). As main thesis it claims that within the area of law enforcement in general and international law enforcement in particular, an epistemological rupture has changed the way we think about law enforcement. First, the chapter looks at the institutions involved in the fight: it asks ‘who’? The second part asks ‘what’ do law enforcement agencies do to counter the activities of TOC? The third part picks up the claim of an epistemological rupture, identifies this in the ever-increasing use of bulk or random data, and presents some arguments for using such methods and some—based on privacy rights—for not using them. This part deplores the militarization of law enforcement and the blurring of the boundary between law enforcement and the security services, which, it postulates, leads to law enforcement being alienated from the populations it serves.
The Changes in and Challenges of Modern Diplomacy
Authors: Roberts Ivor
Published: June 2017

This chapter discusses the changes in and challenges of modern diplomacy. It shows how the quarter-century since the end of the Cold War has seen a greater change in the methods if not the aims of diplomacy than in any period since Renaissance Italy. Yet it is one of the paradoxes of modern diplomacy that in a period when so much of it is conducted at summit level, the importance attached to establishing diplomatic missions in particular by newly independent countries has not diminished one whit. Nevertheless, summitry and multilateral diplomacy, the emergence of alternatives to conventional diplomacy, as well as the importance of the press and social media and the speed of communication have certainly recast the traditional diplomat’s role. Hence the contemporary diplomat not only has to possess a range of qualities and skills, but is expected to be familiar with many subjects, issues, and techniques.
Introduction to International Law
Authors: Wilmshurst Elizabeth
Published: June 2017

This chapter provides a brief account of what international law is and what its sources are. This is particularly useful for those who have not studied the subject. International law may be defined as the law governing relations between States, and between States and international organizations. The chapter notes, however, that even this definition borders on the simplistic. In addition, the relevance of international law to the diplomat is emphasized in this chapter, as it contributes to the discussion later. Hence the chapter first briefly argues for the relevance of international law in the arena of international relations, before turning to a discussion on the nature, sources, and content of international law, in order to draw a more comprehensive account of what international law is about.
The State
Authors: Fox Hazel
Published: June 2017

This chapter addresses the State as the prime actor in the conduct of diplomacy and examines the State’s status as a legal person as defined by international law. To understand the role of the State in international affairs, it is essential to appreciate that it is both a maker and a subject of international law. It has been and continues to be instrumental in the formation of public international law. The chapter thus presents four topics to explain the nature and scope of the powers and activities of the State in international affairs. These are: the qualifications for statehood, recognition of the State as a member of the international community, the State compared to an international organization as a legal person and other entities having lesser rights in international law, and sovereignty as an attribute of the State.
Functions of Diplomatic Missions and Consulates
Authors: Roberts Ivor
Published: June 2017

This chapter examines the functions of diplomatic missions and the performance of consular functions by diplomatic missions. Under long established principles of international law now codified in Article 2 of the Vienna Convention on Diplomatic Relations, the establishment of diplomatic relations between States and the establishment of permanent diplomatic missions take place by mutual consent. The right to send and receive diplomatic agents flows from recognition as a sovereign State and was formerly known as the right of legation (ius legationis). Furthermore, it is in modern practice highly exceptional for two States to recognize each other without formally establishing diplomatic relations—and such a situation usually indicates extreme tension or coolness between them. By contrast, it is now common for two States to establish or to maintain diplomatic relations without having permanent missions in each other’s territory.
Diplomatic Communication
Authors: Roberts Ivor
Published: June 2017

This chapter discusses language and communications in the context of diplomacy. It first describes the language practices from the early days of diplomacy—particularly the use of Latin—before describing the modern practices. Nowadays, the right of the representative of every nation to use the official language of that nation is generally accepted. Furthermore, there is no universal rule making obligatory the use of one language rather than another, and practice even varies. The forms and means of official diplomatic communication are discussed next: Notes Verbales, collective notes, despatches, speaking notes, non-papers and démarches, and others. In addition, the chapter also considers megaphone diplomacy, the ‘rejection’ of diplomatic communications, and the correspondences between sovereigns and Heads of State.
Formal Aspects of Diplomatic Relations
Authors: Roberts Ivor
Published: June 2017

This chapter sets out the titles, precedence, and other formal aspects of diplomatic relations. It begins with a historical background on the order of precedence among sovereigns and Heads of State and the disputes that have arisen in key diplomatic incidents throughout the centuries. It then looks into the titles and precedence of heads of mission, before turning to the two orders of precedence within the United Nations itself—the precedence between delegates and officials and the precedence between member countries. The rest of the chapter is largely devoted to the formal processes governing the ambassadors and other heads of mission. It discusses the selection and appointment of the heads of mission and other diplomatic staff, the limitations of diplomatic missions, multiple accreditation, and so on.
Terrorism and Diplomacy
Authors: Roberts Ivor
Published: June 2017

This chapter discusses terrorism in the context of diplomacy. As far as diplomacy is concerned, attacks on diplomatic and consular missions and on diplomats are attacks on institutions which on the one hand enjoy inviolability under international law but on the other offer attractive targets simply because of their representative character. There can be no a priori definition of procedure to be applied if such attacks take place, although experience shows that capitulation leads only to an escalation in terrorist demands. The only way to work out any guidance on best practice is by taking examples and deducing from them such general advice as one can. Hence the chapter provides some case examples of destructive attacks on missions, the challenges on diplomacy with regards to terrorism, the suppression of terrorism, negotiations, and others.
Privileges and Immunities of the State, The Head of State, State Officials, and State Agencies
Authors: Fox Hazel
Published: June 2017

This chapter provides an account of the immunities of the State, its officials, and state agencies in international law. It first offers a general description of the plea of state immunity and a brief historical account of the development of the law of state immunity. Then it briefly sets out the law relating to the immunities of the State itself as a legal person, followed by the law applicable to its officials and to state agencies. In addition an account based on customary international law will be provided on the immunities of senior state officials. The chapter concludes by taking note of the extent to which the practice of diplomatic missions at the present time accords with requirements of state immunity law as now set out in written form in the 2004 UN Convention on the Jurisdictional Immunities of States and their Property.
Privileges and Immunities of Diplomatic Missions
Authors: Foakes Joanne , Denza Eileen
Published: June 2017

This chapter provides an overview of diplomatic privileges and immunities. Two fundamental rules of diplomatic law—that the person of the ambassador is inviolable and that a special protection must be given to the messages which are sent to and received from the ambassador’s sovereign—have been recognized from time immemorial among civilized States. The law of nations—now known as public international law—required States which accepted foreign diplomats to guarantee rights necessary to enable them to exercise their functions, including independence from local jurisdiction. It was important that ambassadors should not be afraid of traps or distracted by legal trickery. As such, the chapter discusses several areas where these privileges and immunities occur: the premises of the mission, the diplomatic asylum, the exemption of mission premises from taxation, the inviolability of mission archives, freedom of communications, the diplomatic bag, and freedom of movement.
Privileges and Immunities of Diplomatic Agents
Authors: Foakes Joanne , Denza Eileen
Published: June 2017

This chapter explores the immunities accorded to a diplomatic agent personally, as distinct from those dealt with in the previous chapter. These include personal inviolability and immunity from criminal, civil, and administrative jurisdiction. Unless entitled to some specific exemption by international agreement or by national law, a diplomatic agent is otherwise legally bound by the laws and regulations of the receiving State. Diplomatic agents are not exempt from the obligation to obey the local criminal law, or from the duty to pay debts, or to seek local planning permission before rebuilding their residences, or from local regulations regarding the maintenance and insurance of vehicles when driving. But if they break any of these laws, immunity means that they cannot be arrested or detained by the executive authorities of the receiving State and cannot be subjected to criminal trial or sued in civil proceedings before the judicial authorities of that State.
Human Rights
Authors: Clooney Amal
Published: June 2017

This chapter provides a general overview of international human rights law as well as the diplomat’s role in upholding human rights. Every State that is a member of the United Nations has made a commitment to uphold human rights. Today, a State’s human rights record is routinely scrutinized by the UN and in the media, and compliance with human rights obligations can define a State’s reputation and relations with other States. Diplomats are also increasingly involved in speaking out on behalf of their State about human rights abuses, whether or not these are committed against the State’s own citizens. They are also expected to respond to allegations of human rights abuses levelled against their government.
The United Nations—I the Charter and its Operation
Authors: Parry Emyr Jones
Published: June 2017

This chapter examines the charter, structures, organs, and operations that govern the inner workings of the United Nations. It also attempts to show how over more than 60 years a number of events and developments have affected the character and practices of the United Nations. Undoubtedly, the most important single development has seen the total membership grow nearly fourfold (50 to 193) in number. Of this latest number, a majority are former dependent territories. In addition, diplomats working within the UN system usually belong to a national mission in New York and elsewhere. This entails a specialized role, invariably concentrating on a particular topic or committee, and being the basic source of advice to the ambassador, and hence to the capital.
The United Nations—II Specialized Agencies, Funds and Programmes, Regional Commissions, and Special Bodies
Authors: Parry Emyr Jones
Published: June 2017

This chapter explores a wide collection of bodies falling within reach of the United Nations and its six organs—all of which come loosely under the headings Specialized Agencies, Funds and Programmes, Other Entities, and Related Organizations. The UN specialized agencies are not part of the United Nations, though they all have ‘relationship agreements’ with the UN and are regarded as part of the ‘UN family’. They are independent international organizations funded by both voluntary and assessed contributions. Funds and Programmes are usually set up by decisions of the General Assembly or the Economic and Social Council, or both. They are funded by voluntary contributions and have their own elected Executive Boards which report to the organ which created them. They also have no separate international legal personality.
The G8/G7, G20, BRICS, WTO, OECD, IMF, and the World Bank
Authors: Roberts Ivor
Published: June 2017

This chapter examines a number of global financial institutions. The first is the Group of Eight (G8)—currently known as the Group of 7 (G7)—an informal international forum comprising seven of the world’s leading industrialized nations (US, Japan, Germany, France, UK, Italy, Canada) and Russia. Next, is the G20, which aims to expand the G8. BRICs represents the economies of Brazil, Russia, India, and China. The Organisation for Economic Cooperation and Development (OECD), meanwhile, is tasked with becoming an authoritative centre of research and initiative in economic thought and development. The International Energy Agency (IEA) has four main areas of focus: energy security, economic development, environmental awareness, and engagement worldwide. The World Trade Organization (WTO) is an institutional body which deals with trade liberalization. The International Monetary Fund (IMF) and the World Bank, both established in 1944, aim for international economic cooperation, with the latter focusing on development.
The European Union—II External Relations
Authors: Berman Paul
Published: June 2017

This chapter examines the unique characteristics of the European Union in conducting its external relations, including its limitations and complex division of responsibilities. The Union’s position on the international stage has frequently been seen as ambiguous. Its extensive common policies and legislation, and its extensive relations with third States and international organizations, can create the expectation that the European Union can or should act at the international level in a manner akin to that of a single State. However the Union can only act within the limits of the powers conferred on it by its Member States under the EU Treaties and the complex division of responsibilities amongst the Union’s own institutions. As such, dealing with the European Union at the international level can indeed be perplexing.
The International Court of Justice
Authors: Wilmshurst Elizabeth
Published: June 2017

This chapter showcases the International Court of Justice. Located in the Peace Palace at The Hague, the Court was established by the United Nations Charter as a forum for settling international disputes. It is now one of a number of international courts, but it remains the principal judicial organ of the United Nations. Most of the detailed provisions relating to its functions and powers are to be found in the Statute of the Court which is annexed to the UN Charter and forms an integral part of it. While few diplomats in the course of their careers are likely to appear before the Court as representatives of their governments, the use of the Court to settle disputes, and the impact of the Court’s decisions more generally, are significant features of the conduct of international affairs.
Prosecutions
Authors: Wilmshurst Elizabeth
Published: June 2017

This chapter concerns the International Criminal Court (ICC) and the ad hoc Tribunals for the former Yugoslavia and for Rwanda, as well as other courts with international elements. It begins with a discussion of the ICC, and then addresses more briefly the residual mechanism set up to deal with the remaining work of the two ad hoc Tribunals and finally, even more briefly, other courts with international elements. The ICC in particular was borne out of the success of the ad hoc Tribunals, although other courts with international elements have since been created. All these courts and tribunals share the characteristic that they have jurisdiction over individuals, not States, and their purpose is to investigate and prosecute for various international crimes. Of these courts and tribunals, the ICC is the only one with a substantial continuing caseload and is the only permanent international criminal court.