bluuebunny/crossref_metadata_2025 huggingface dataset:
Measures to Combat Smuggling of Migrants by Sea
Authors: Lelliott Joseph
Published: June 2024

This chapter addresses Article 8 of the Smuggling of Migrants Protocol, which principally concerns law enforcement action against vessels used for migrant smuggling. As explained in the commentary on Article 7, it does not create new legal rules in this regard; rather, it places obligations on States Parties to cooperate within the framework of the international law of the sea. In particular, States Parties are required to respond to requests to assist in the suppression of smuggling vessels not flying their flag. They must also confirm the registry of vessels reasonably suspected of migrant smuggling when requested and, if they are the flag State, consider authorizing a requesting State Party to take action. To facilitate the making and receiving of requests, States Parties are required to establish administrative mechanisms. Article 8 also reinforces the right to visit stateless vessels on the high seas and, arguably, extends the ability of States Parties to take enforcement action against such vessels.
Safeguard Clauses
Authors: Lelliott Joseph
Published: June 2024

This chapter describes Article 9 of the Smuggling of Migrants Protocol. Article 9 sets out important safeguards for the measures States Parties may take against smuggling vessels, or those they have reasonable grounds to suspect are engaged in smuggling. Principally, Article 9 places limits on law enforcement actions permitted by Article 8 and, as such, should be read against its contents. It requires that measures taken against a vessel under Article 8 ensure the safety and humane treatment of persons on board and account for its security, commercial or legal interests in the vessel, and environmental considerations. Article 9 further requires that vessels are compensated for any loss or damage incurred where the suspected grounds for Article 8 measures are unfounded (and unjustified), mandates that measures are only carried out by certain government craft, and reaffirms the jurisdiction of coastal and flag States.
Legitimacy and Validity of Documents
Authors: Taylor Matthew R
Published: June 2024

This article aims to prevent and combat the smuggling of migrants and international cooperation, seeking to decrease the risk of misuse of travel and identity documents. It requires a State Party to verify within a reasonable time whether a document purporting to have been issued by it is legitimate and valid. It is also identical to Article 13 of the Trafficking in Persons Protocol and similar obligations in regional trafficking instruments. The article is important in the investigative stage where verification can play a critical role in supporting the laying of criminal charges against smugglers. It references documents purported to be issued by a State Party as a useful means of verifying whether documents being reviewed by another State Party are authentic.
Training and Technical Cooperation
Authors: Taylor Matthew R
Published: June 2024

This article complements the detailed obligations contained in Articles 29 and 30 of the United Nations Convention Against Transnational Organized Crime (UNTOC), which concern training, technical assistance, and other related measures. It helps to focus State practice in a manner that best reflects the objectives and purpose of the Smuggling of Migrants Protocol. It also requires States Parties to train their own officials to better prevent the smuggling of migrants, to cooperate with other States and organizations, and to consider providing technical assistance and resources to other States where appropriate. The article encompasses a prevailing theme that training efforts must include an explicit focus on the rights of migrants and their humane treatment. It recognizes the importance of training front-line personnel who are most likely to encounter smuggled migrants.
Other Prevention Measures
Authors: Lelliott Joseph
Published: June 2024

This article considers prevention efforts as a key part of a holistic response to the smuggling of migrants and a purpose of the Smuggling of Migrants Protocol. It has a preventive function from criminalization and cooperation at sea and targets the causes of such phenomenon. It also helps reduce the costs of investigating and prosecuting migrant smuggling, stops organized criminal groups from profiting from illegal activity, and helps avoid potential harms to smuggled migrants. The article addresses prevention, including those concerning information sharing, border measures, document controls, and training and technical cooperation. It concerns the supply side of smuggling by disseminating information to dissuade migrants from engaging smugglers and addressing the root causes of smuggling.
Signature, Ratification, Acceptance, Approval and Accession
Authors: Schloenhardt Andreas
Published: June 2024

This article sets out the process by which States as well as regional economic integration organizations can become parties to the Smuggling of Migrants Protocol and be bound by it. It specifies the time for which the Protocol is open for signature. After this period, States and regional economic integration organizations can join by ratification, acceptance, approval, and accession. The article emphasizes that the Protocol will be open for signature by regional economic integration organizations provided that at least one member State of such organization has signed. It demonstrates the deposit of instruments of ratification, acceptance or approval with the Secretary-General of the United Nations.
Entry into Force
Authors: Schloenhardt Andreas
Published: June 2024

This article sets out the conditions that need to be fulfilled for the Smuggling of Migrants Protocol to enter into force. The main requirement is the minimum number of 40 instruments of ratification, acceptance, approval, or accession which is followed by a 90-day waiting period. It defines the point in time when the Convention initially comes into force and concerns the entry into force for States and regional economic integration organizations that become bound after a determined date. The article points out that the Protocol entered into force on 28 January 2004. Any instrument deposited by a regional economic integration organization will not be counted as additional to those deposited by member States.
Denunciation
Authors: Schloenhardt Andreas
Published: June 2024

This article is based on Article 40 of the United Nations Convention Against Transnational Organized Crime (UNTOC). It sets out the process of how States Parties may withdraw from the Smuggling of Migrants Protocol and the conditions under which the denunciation may take place. States Parties may withdraw unilaterally from the Protocol by notifying the UN Secretary-General. The article states that the regional economic integration organizations cease to be a Party to UNTOC once all of its Member States have withdrawn. Under Article 40(3) of UNTOC, withdrawal from the Convention automatically results in the denunciation of the Protocols to UNTOC.
Preamble
Authors: Schloenhardt Andreas
Published: June 2024

This chapter provides some insight into the background, development, and context of the Firearms Protocol, including the dangers and challenges posed by the global illicit trade in firearms and its impact on individuals, communities, social and economic development, and the security of States. It emphasizes the need to adopt appropriate countermeasures at national, regional, and global levels. It also acknowledges the work of the Ad Hoc Committee in developing the final text of the United Nations Convention Against Transnational Organized Crime (UNTOC) and its Protocols. The chapter outlines general principles concerning equal rights and self-determination of peoples as well as friendly relations and cooperation under the Charter of the United Nations. It highlights the special relationship between the Firearms Protocol and UNTOC.
Use of Terms
Authors: Block Johannes
Published: June 2024

This article sets out definitions that are essential to the functioning of the Firearms Protocol, determining which firearms fall under the Protocol and the acts of illicit manufacturing and trafficking. It discusses the overlap of the Protocol with other international instruments relating to the regulation of firearms. It also emphasizes how States Parties must ensure that existing national law or newly introduced legislation has at least the same scope as the definition of terms. The article defines firearms as man-made lethal weapons that expel or launch a projectile by the action of an explosive. The Protocol’s definition of firearms excludes larger weapons, such as artillery that is not portable.
Record-keeping
Authors: Block Johannes
Published: June 2024

This article enables a comprehensive traceability of firearms, which is essential to allow effective combating of the illicit firearms trade and manufacturing. It highlights the obligation to keep records for long time periods that becomes apparent when considering the durability of firearms themselves. It also emphasizes that States Parties must be diligent to the Firearms Protocol about traceability and accountability in order to comply with their obligations, despite the weakness of some other provisions. States Parties must ensure that information that is necessary to enable the tracking of firearms, its parts, and its components is kept. The article contains specifications necessary for tracing, which are non-exhaustive and include mandatory information in the national record system that could encompass data on manufacturers, vendors, and buyers.
Deactivation of Firearms
Authors: Block Johannes
Published: June 2024

This article requires States Parties to render deactivated firearms permanently inoperable and to establish verification for the necessary deactivations. It aims to tackle the issue on a study published by the Flemish Peace Institute in 2018, which found that the reactivation of deactivated firearms is one of the most important illicit sources for illegal firearms in the European Union. It also talks about how irreversible deactivation is necessary to ensure that deactivated firearms cannot be employed by criminal elements, including organized crime. The article recognizes that States Parties have different legal regimes concerning deactivated firearms, noting that it can be considered as firearms in some jurisdictions and subject to the same rules as functional arms. It obliges States Parties to take the respective legal measures to prevent the illicit reactivation of firearms if deactivated firearms are not subject to arms controls for functional arms in national law.
General Requirements for Export, Import and Transit Licensing or Authorization Systems
Authors: Block Johannes
Published: June 2024

This article covers the established lines of communication and authorization between exporting and importing States that may counterbalance weaknesses which may exist in the import State’s administration and prevent some diversion of firearms to the illegal market. It is based on the principle, which is central to the Firearms Protocol, that no firearms should be shipped without the awareness and approval of all States involved. It also points out how the transfer of firearms, ammunition, and parts and components by postal or courier services poses a challenge for measures attempting to prevent such items from being transferred for illegal purposes. The article sets out a control regime based on a broad understanding of transfer, covering import, export, and transit of firearms, their parts and components, and ammunition. It groups the obligations of States Parties into three main acts of transfer: import, export, and international transit.
Entry into Force
Authors: Schloenhardt Andreas
Published: June 2024

This article sets out the conditions that need to be fulfilled for the Firearms Protocol to enter into force. The main requirement of the enforcement is the minimum number of 40 instruments of ratification, acceptance, approval, or accession, which is followed by a 90-day waiting period. It defines the point in time when the Convention initially comes into force and concerns the entry into force for States and regional economic integration organizations that become bound after a determined date. The article points out that the instrument deposited by a regional economic integration organization will not be counted as additional to those deposited by member States of such organization. The Protocol will enter into force on the thirtieth day after the date of deposit by a State or organization for each State or regional economic integration organization ratifying, accepting, approving or acceding to the Firearms Protocol.
Amendment
Authors: Schloenhardt Andreas
Published: June 2024

This article sets out the process to make amendments to the Firearms Protocol. The amendment process is based on the general rules for formal changes to international treaties that are set out in Articles 39 and 40 of the Vienna Convention on the Law of Treaties. It also stipulates how proposals to amend the Protocol can be submitted, circulated, and adopted. The article spells out the specific role of regional economic integration organizations if amendments are voted on and details the entry into force of any amendment. When an amendment enters into force, it shall be binding on those States Parties which have expressed their consent to be bound by it.
Denunciation
Authors: Schloenhardt Andreas
Published: June 2024

The chapter sets out the process of how States Parties may withdraw from the Firearms Protocol and the conditions under which the denunciation may take place. It points out that States Parties may withdraw unilaterally from the Protocol by notifying the UN Secretary-General. It also mentions that regional economic integration organizations cease to be a Party to the United Nations Convention Against Transnational Organized Crime (UNTOC) once all of its Member States have withdrawn. The article implies that a State Party may denounce the Protocol by written notification to the Secretary-General of the United Nations. Such denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.
General international law in international investment law
Authors: Kulick Andreas , Waibel Michael
Published: June 2024

This entry by the two editors introduces the Commentary. It explains the main goals of the Commentary, the concept of a semi-systematic Commentary and what this Commentary means by ‘general international law’. Moreover, it sets out the guiding questions that each entry addresses and the structure and contents of this Commentary. (1) How do the ICJ and other judicial bodies interpret and apply the rule beyond IIL? (2) How do arbitral tribunals and domestic courts interpret and apply the rule in investment disputes? Have tribunals diverged? How important is the rule in investment arbitration? (3) To what extent does investment arbitration practice align with the practice of the ICJ and other tribunals? (4) What explains (non-)alignment? How has GIL affected (non-)alignment? (5) Should the specific rule or area align with GIL, and why?
Article 25 of the VCLTProvisional application
Authors: Voon Tania
Published: June 2024

This entry considers the provisional application of treaties pursuant to Article 25 of the Vienna Convention on the Law of Treaties, in the specific context of disputes arising in international investment law. An agreement to apply a treaty on a provisional basis usually exists in the relevant treaty itself but may also take other forms. The most controversial area with respect to provisional application in investment disputes relates to the extent to which domestic law may limit such application. This issue has been particularly problematic with respect to the Energy Charter Treaty because of the ambiguity of its relevant terms. Because the Energy Charter Treaty provides for some obligations to continue for 20 years after a state (eg Russia) terminates its provisional application, the impact of domestic law on provisional application becomes even more important in those circumstances.
Article 28 of the VCLT: Non-retroactivity of treaties
Authors: Juratowitch Ben , McArthur Jackie
Published: June 2024

This entry examines Article 28 of the Vienna Convention on the Law of Treaties (VCLT). It documents the widespread acceptance of the rule reflected in Article 28, though its status as customary international law or a general principle of law is less clear. International courts and tribunals readily apply Article 28 to treaty provisions that establish primary obligations. Unlike the International Court of Justice (ICJ) and Permanent Court of International Justice (PCIJ), other courts and tribunals have been less permissive in considering their temporal jurisdiction.
Article 31 of the VCLT: General rule of interpretation
Authors: Kulick Andreas , Merkouris Panos
Published: June 2024

This entry provides a systematic treatment of the doctrinal requirements of the general rule of interpretation under Article 31 of the Vienna Convention on the Law of Treaties (VCLT) and provides evidence of the customary status of Article 31. In discussing the requirements of Article 31, the entry engages with both literature and decisions of the International Court of Justice (ICJ), other international adjudicatory bodies and in particular investment arbitration tribunals. Generally, investment tribunals align in their approaches with those adopted by other international courts and tribunals, especially the ICJ and remain mostly faithful to the requirements set out in Article 31. However, some deviations are expected due to the flexible nature of Articles 31–33 of the VCLT, the hybrid nature of investment arbitration, and the plethora of awards rendered. Notable deviations pertain to the use of dictionaries and the use of third-party investment agreements as ‘context’.
Article 32 of the VCLT: Supplementary means of interpretation
Authors: Shirlow Esmé , Waibel Michael
Published: June 2024

This entry covers the approaches of international courts and tribunals to using supplementary means of interpretation under Article 32 of the Vienna Convention on the Law of Treaties (VCLT). International courts and tribunals have repeatedly recognized Article 32 to be reflective of customary international law. The entry considers how the International Court of Justice (ICJ) and other international courts and tribunals, including investment tribunals, have applied supplementary means of interpretation in their decisions. It highlights the different approaches that have developed vis-à-vis both the types of materials to which Article 32 applies and the triggers for recourse to supplementary means of interpretation under Article 32. The entry highlights the discretion inherent in the application of Article 32 for international courts and tribunals to determine the role to be played by supplementary means of interpretation under the VCLT’s interpretive framework.
Article 6 of the ARSIWA and Article 7 of the ARIO
Authors: Bonnitcha Jonathan , Mathew Alisha
Published: June 2024

This entry discusses Article 6 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) and Article 7 of the Articles on the Responsibility of International Organizations (ARIO). Both provisions concern the attribution of conduct where an organ of a State is placed at the disposal of another State or an international organization. Due to the lack of sufficiently consistent state practice and opinio juris, doubts about whether either represents custom were raised. The entry presents the requirements of Article 6 ARSIWA and Article 7 ARIO, highlighting that an important issue pertains to whether a ‘factual’ or ‘legal’ approach should be used to determine whether an organ of a State has been placed under the direction and control of another State or international organization. It further discusses the sparse practice and notes that the existing few cases do not allow any definitive conclusions regarding alignment or deviation between investment arbitration and general international law jurisprudence.
Article 8 of the ARSIWA
Authors: Viñuales Jorge E , Papanastasiou Alina
Published: June 2024

This entry discusses Article 8 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). The provision codifies the customary rule on attribution of conduct of persons instructed, directed or controlled by a state. The entry details the requirements enshrined in Article 8 and discusses the decisions of investment tribunals and other international courts and tribunals on the matter. The entry concludes that investment arbitration tribunals are among the most frequent users of the customary rules on attribution and that their jurisprudence has gradually become an important vector in the consolidation of the general international law of attribution and is thus likely to play a growing role in clarifying the operation of the rule codified in Article 8 of the ARSIWA.
Article 20 of the ARSIWA
Authors: Paddeu Federica
Published: June 2024

This entry focuses on the defence of consent in accordance with Article 20 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). It discusses the requirements of this defence under general international law, addressing questions as to the timing, form, authority, scope, and withdrawal or termination of consent. It then considers the application of this defence in international investment law, in particular whether the consent of the home State to non-performance of investment obligations is valid as against the investor, and whether investors can consent to non-performance vis-à-vis the host State.
Article 21 of the ARSIWA
Authors: Paddeu Federica
Published: June 2024

This entry considers self-defence as a circumstance precluding wrongfulness under Article 21 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). It explains the scope of application of self-defence as a defence under Article 21 ARSIWA: the defence applies to collateral violations of the rights of the aggressor State, which are caused by ‘lawful measures’ of self-defence. It then considers the application of Article 21 in international investment law, addressing in particular questions of jurisdiction of investment tribunals and the impact of an inter-State defence on rights of private entities.
Article 24 of the ARSIWA
Authors: Paddeu Federica
Published: June 2024

This entry discusses Article 24 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), on the defence of distress. This defence was an instance of progressive development by the International Law Commission (ILC), which was inspired by similar rules in the law of the see and the law of aviation (refuge in distress). The entry reviews the requirements for the application of this defence in general international law, and then in international investment law. It notes the stricter standard applied in one investment decision, and explains how this is inconsistent with the drafting of the defence and its overall aim.
Article 26 of the ARSIWA
Authors: Paddeu Federica
Published: June 2024

This entry addresses Article 26 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Pursuant to this provision, defences under the law of state responsibility may not be invoked in respect of conduct in breach of peremptory rules of international law. The entry notes that States cannot, by agreement, set aside the application of peremptory rules, it must follow that they cannot do so unilaterally. It then explains the application of the provision in general international law and international investment law.
Part Two, Chapters I and II of the ARSIWA
Authors: Vidigal Geraldo , Forrest Stephanie
Published: June 2024

This entry discusses the provisions in Part Two, Chapters I and II of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), Art. 28-39. It sets out their requirements, presents the relevant literature and decisions dealing with the remedies available when international responsibility of a state is established. For the most part, these rules constitute customary international law. International courts operating in the interstate context and investment tribunals usually take either the ARSIWA directly or the decisions and state practice regarding remedies the ILC sought to codify as a starting point. However, despite this shared starting point, divergence of the practices in general international law and in investment law has emerged, especially regarding compensation, the most commonly ordered remedy. Investment tribunals have traditionally preferred awards of compensation over all other remedies. In contrast, other international courts and tribunals are more likely to consider a wider range of available remedies, including cessation of unlawful conduct, determinations of material or juridical restitution, and declarations awarding satisfaction.
Articles 49–54 of the ARSIWA
Authors: Paparinskis Martins
Published: June 2024

This entry explores the framework set by Articles 49–54 of the 2001 International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Countermeasures are distinct from retorsion and the termination or suspension of treaties under the law of treaties. Countermeasures simultaneously play the roles of a shield and a sword in the law of State responsibility, respectively precluding wrongfulness and implementing responsibility. The entry addresses the application of the provisions in general international law and international investment law. It explains that countermeasures must meet certain substantive and procedural conditions.
The protection of foreign investment in the law of State succession
Authors: Sarvarian Arman
Published: June 2024

This entry addresses the protection of foreign investment in the law of State succession. The substantive rules of general international law derive from customary international law, national laws of States, and general principles of law. In the absence of investor–State arbitration, general international law governs the treatment of the property of aliens in the territorial jurisdiction of the successor. The entry considers the key debates concerning decolonization, such as the duty to compensate aliens for the expropriation of their property. It also examines the notions of international minimum standard of treatment, concessionary contracts, and foreign bondholders in line with the protection of foreign investment.
Article 38 of the ICJ Statute
Authors: Dumberry Patrick
Published: June 2024

This entry discusses Article 38 of the Statute of the International Court of Justice (ICJ Statute). It explains that sources in Article 38 are generally regarded as applicable in ICJ cases and other international courts and tribunals. Investor–State arbitration tribunals frequently refer to the provision as an authoritative statement of the sources of international law. Moreover, no arbitral tribunal has ever rejected the relevance of Article 38(1) of the ICJ Statute in the field of international investment law. The entry explains how judicial bodies considered that two basic requirements of State practice and opinio juris are necessary to conclude that a customary rule exists.
Regional Developments: Americas
Authors: Piovesan Flávia , Jubilut Liliana Lyra , Casagrande Melissa Martins
Published: June 2024

This chapter covers how the Americas have developed regional instruments to enhance refugee law and protection. It details the region's response in the drafting of the 1951 Convention and the Convention’s implementations and of regional developments and trends in North America and Latin America. After the approval of the 1951 Convention and the 1967 Protocol, refugee law and protection had been improved through regional developments. The chapter examines the developments concerning the debates and practices of the refugee concept under the new forced migration development and the adoption of new universal norms and governance guidelines on the refugee regime. It acknowledges the adoption of the Cartagena Declaration and its review documents as a sign of progress.
Article 1 A, para. 2 1951 Convention
Authors: Zimmermann Andreas , Herrmann Franziska
Published: June 2024

This chapter focuses on the features of Article 1 of the 1951 Convention. The article primarily determines the scope of application of the Convention's ratione personae while outlining the basis of the protection of refugees. Additionally, Article 1 addresses the concerns surrounding the inclusion, cessation, and exclusion of refugees. The chapter then tackles the historical development of the article by considering the instruments used prior to the 1951 COnvention. It also cites that the Constitution of the International Refugee Organization appears to contain an ambiguity as to how the refugee notion was perceived, so refugees only became the IRO Constitution's concern when they have valid objections to returning to their home country.
Article 1 B
Authors: Schmahl Stefanie
Published: June 2024

This chapter elaborates on the functions of Article B of the 1951 Convention. It explains how the European States sought to create a rights regime conducive to the redistribution of the post-war refugee burden from their shoulders, especially when States complained about coping with the bulk of human displacement after the Second World War. Since Article 1 A's definition of refugees does not apply universally, Article 1 B provides States the option to restrict the definition on geographical grounds. However, after geographical and temporal limitations of the refugee definition were lifted through the 1967 Protocol, the Convention became a treaty of universal and temporally-unlimited application. It enumerates Congo, Madagascar, Monaco, and Turkey as the only countries with geographical limitations. Human rights
Article 1 D
Authors: Qafisheh Mutaz M , Albanese Francesca
Published: June 2024

This chapter details Article 1 D of the 1951 Convention. Article 1 D primarily reflects the reality of some refugee situations at the time the Convention was drafted, so it acknowledged certain categories of refugees that may benefit from separate assistance and protection from UN organisations and agencies. Moreover, the article was intended to avoid the overlapping competencies between different mandates of UN agencies dealing with refugees. The chapter also considers the drafting history of Article 1 D, which holds relevance to Palestinian refugees. It explains that the article's main function is ensuring the protection of Palestinian refugees until their position was settled with international law.
Article 1 F
Authors: Rikhof Joseph , Wennholz Philipp
Published: June 2024

This chapter explains that Article 1 F regulates the legal status of people whose personal conduct is considered to be beyond the 1951 Convention's scope of protection. It clarifies the exclusion of the respective groups of persons per se from the 1951 Convention’s scope of application ratione personae. The exclusion of common law criminals also serves the purpose of preventing the benefits of refugee status from applying to fugitives from justice and protecting the populations of the respective receiving country against possible future crimes. Moreover, the United Nations High Commissioner for Refugees (UNHCR) raised the argument of considering any pardon or amnesty being in line with the relevant country's democratic will.Human rights
Article I
Authors: Schmahl Stefanie
Published: June 2024

This chapter elaborates on Article I. It starts with the premise of the Convention responding to the difficulty of handling refugees subsequent to the Second World War. However, the refugee crisis expanded beyond the Western sphere and affected regions such as Asia and Africa. Thus, the 1967 Protocol achieved the formal, but not the substantive, universalization of the 1951 Convention definition of refugee status. The chapter cites that the 1967 Protocol liberated the 1951 Convention from temporal and geographical limitations, which also equalised the legal status of future refugees independent from the dateline of January 1951. It explains the subsequent result of the 1951 Convention and the 1967 Protocol as the Magna Carta for refugees.
(Non-Discrimination/Non-Discrimination)
Authors: Mwakagali Mpoki , Marx Reinhard
Published: June 2024

This chapter clarifies the central purpose of the 1951 Convention's Article 3 to prohibit discrimination by the State parties to the 1951 Convention regardless of the refugees' race, religion, or country of origin. The article does not require the contracting States to treat refugees in the same manner as other aliens or their national citizens. However, State parties to the Convention are likely bound by the principle of non-discrimination beyond the provisions of the 1951 Convention and in other international instruments, such as the general international human rights law. During its drafting history, Article 3 was deemed to be of symbolic importance instead of adding enforceable rights for refugees. The chapter considers the declarations and reservations made while considering Article 3.
(Rights granted apart from this convention/Droits accordés indépendamment de cette Convention)
Authors: Skordas Achilles , Ineli-Ciger Meltem
Published: June 2024

This chapter covers Article 5 of the 1951 Convention that guarantees minimum rights. It explains how the provision brings the observation of1951 Convention in line with an impressive landscape of protection regimes relevant to the evolution of refugee protection. Article 5 is evidence of the 1951 Convention’s awareness of an ongoing evolutionary process of internal differentiation of both international refugee law and related domestic asylum law. Moreover, the 1951 Refugee Convention coexists with other international and supranational regimes in a pluralist international legal order without clear hierarchies. The chapter also looks into the interrelationship of Article 5 with other provisions.
(Exemption from Exceptional Measures/ Dispense de Mesures Exceptionnelles)
Authors: Davy Ulrike , Stern Rebecca Thorburn
Published: June 2024

This chapter looks into Article 8 of the 1951 Convention. It explains that the article primarily focuses on the formal legal bond between a refugee and their country of origin. The legal bond does not sufficiently legitimize measures intrinsically based on the supposition that there is a strong bond of loyalty between the State and its nationals even when the nationals living abroad. Moreover, the relevance of Article 8 of the 1951 Convention primarily depends on whether contracting States may resort to exceptional measures as easily as they could at the time of drafting. The chapter cites how exceptional measures may contravene human rights law.
Diplomatic Asylum
Authors: Denza Eileen
Published: June 2024

This chapter elaborates on the notion of diplomatic asylum. It starts with the limited legal authority for the practice of diplomatic asylum. However, people who seek refuge within foreign embassies do not fall within the 1951 Convention's definition of refugees. The chapter details the historical development of the practice of diplomatic asylum for fugitives. When fugitives sought refuge within other premises entitled to inviolability, the principles applied do not differ from the rules applied to asylum within diplomatic missions. According to the Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR), States are content with the existing international law and practice when concerned with diplomatic Asylum. Human rights
(Movable and Immovable Property/ Propriété Mobilière et Immobilière)
Authors: Leckie Scott , Simperingham Ezekiel
Published: June 2024

This chapter focuses on Article 13 of the 1951 Convention. It explains that Article 13 entails an obligation of contracting States to provide minimal protection of the right to property for refugees, regardless of whether the properties are movable or immovable. The provision also offers minimal protection beyond the general duty of non-discrimination. Despite the low standard of protection required under Article 13, the provision is inclusive to the class of refugees who may benefit from this provision. The chapter mentions the greater benefit of relying on the article's specific guarantee under the COnvention instead of the general right under human rights law.
(Artistic Rights and Industrial Property/ Propriété Intellectuelle et Industrielle)
Authors: Metzger Axel
Published: June 2024

This chapter expounds on the 1951 Convention's Article 14. It details the contracting States' obligation to accord refugees the right to enforce intellectual property rights in the country of habitual residence as if the refugee was a regular citizen. Article 14 applies to all types of industrial property, including copyrights and neighbouring rights. The chapter explains how the article remains of value in cases where the home State nor the asylum State is a party to the Berne Convention 1971 or the Paris Convention 1967. Additionally, Article 14 will be invoked in exceptional cases of intellectual property conventions that require material reciprocity. Human rights
(Right of Association/Droit d’Association)
Authors: Teichmann Michael
Published: June 2024

This chapter explores the 1951 Convention's Article 15. It elaborates on Article 15 insisting on the contracting parties' obligation to grant refugees favourable treatment accorded to nationals of a foreign country regarding non-political and non-profit-making associations and trade unions. Moreover, Article 15 establishes a basic rule for refugees' political, social, cultural, and other activities in connection with associations which form an important part of refugee life. Thus, refugee organisations play an important role in the delivery of basic services to refugees. The chapter mentions the limiter practice importance of Article 15 due to the broader legal protection of international human rights instruments. Human rights
(Wage-Earning Employment/Professions Salariées)
Authors: Edwards Alice
Published: June 2024

This chapter looks into Article 17 of the 1951 Convention that addressed the right to work of refugees. The right to work is fundamentally correlated to the enjoyment of one's human rights, dignity, family security, and longer-term integration and naturalisation. The chapter covers the historical development and drafting history of Article 17. The Convention's right to wage-earning employment is a reflection of a particular set of political and economic circumstances characterising the aftermath of the Second World War. Moreover, case law confirmed that States cannot refuse employment rights by failing to recognize the refugee status of asylum seekers, even if they were denied under the provisions of Article 17 or the justifications of the International Covenant on Economic, Social and Cultural Rights (ICESCR).Human rights
(Administrative Assistance/Aide Administrative)
Authors: Lester Eve
Published: June 2024

This chapter explores Article 25 in the 1951 Convention's Chapter V. It tackles how Chapter V governs both the administrative means by which refugees may establish and assert their rights and the extent to which the State may administer the refugee's presence in its territory. Additionally, the central purpose of Article 25 ensures that refugees can enjoy the acts of civil life and the rights, which the 1951 Convention provides. The chapter notes the principal preoccupations of common law countries focused on affidavits serving the same function as documents and certifications. It cites the provision's significance to the refugee's ability to rebuild their life.
(Identity Papers/Pièces d’Identité)
Authors: Vedsted-Hansen Jens
Published: June 2024

This chapter discusses Article 27's aim to ensure the identity papers of refugees. It also explains the other purpose of issuing identity papers as an element of registration programmes, such as protection against refoulment. Moreover, the documentation system may enable the assessment and quantification of relevant protection needed at the organizational level and prepare the implementation of durable solutions. The chapter explains compliance by contracting the State with the obligation to issue identity papers in accordance with the provision in terms of exercising everyday activities. Moreover, Article 27 does not require the inclusion of status information in the identity papers issued to refugees.
(Fiscal Charges/Charges Fiscales)
Authors: Nagy Boldizsár
Published: June 2024

This chapter examines Article 29 of the 1951 Convention. It explains the provision's function to prevent refugees from being subjected to the treatment foreigners may be exposed to. Additionally, Article 29 clarifies that refugees are not entitled to claim additional easements with regard to the State charges, even if those disbursements have a more severe effect on them than on national citizens. The chapter mentions how taxation is not usually nationality-specific, but national treatment may imply indirect discrimination. It also considers the rising need for international protection and the likelihood of reconsidering Article 29 to extend their tax authority to taxable elements closely linked with the country of origin.
(Transfer of Assets/Transfert des Avoirs)
Authors: Nagy Boldizsár
Published: June 2024

This chapter examines the function of Article 30 of the 1951 Convention. It starts with the origin of Article 30 tooted in times of strict currency and wealth controls. The provision purports to regulate two types of transfers that involve assets into the country of resettlement and the refugee assets. Additionally, Article 30 allows the resettlement of refugees to occur in a humane way. The chapter clarifies that the provision doe snot address repatriation. It also explains the importance of Article 30 waning following the dramatic change in the management of financial transactions because of the large-scale flights involved in a direct threat and did not leave time for affected refugees to mobilize assets beyond the bare minimum.
(Refugees Unlawfully in the Country of Refuge/ Réfugiés en Situation Irrégulière dans le Pays d’Accueil)
Authors: Noll Gregor
Published: June 2024

This chapter explains that the 1951 Convention's Article 31 acts as an uneasy compromise that addresses a broader range of issues than the criminalization of immigration infractions and detention. It also cites that unauthorized entry and presence remain a precarious necessity as long as refugees lack the right to enter into and stay in a potential country of refuge. Under the provision, contracting parties are obliged not to penalize refugees' unauthorized entry and stay under certain conditions. Moreover, Article 31's second paragraph allows the parties to impose restrictions on the movements of unlawfully entering or staying refugees. The chapter explicates that Article 31 adopts Kantian ideas on hospitality with a reconfirmation of States' sovereign power over the bodies of refugees that manifested through detention.
(Prohibition of Expulsion or Return (‘Refoulement’)/ Défense d’Expulsion et de Refoulement)
Authors: Kälin Walter , Caroni Martina , Heim Lukas
Published: June 2024

This chapter focuses on paragraph 1 of Article 33. It explains that the provision details the principle of non-refoulment, which is the cardinal principle of protection of the 1951 Convention. The non-derogable principle indicates that States are not allowed to return refugees to territories that would risk their lives or freedom under the conditions of either their race, religion, nationality, membership to a social group, or political opinion. Even though a right to asylum would create a positive obligation, the prohibition of refoulement imposes a negative duty to refrain from actions resulting in the refugee's forcible return to the country of persecution. The chapter clarifies that the protection will only last as long as their refugee claim is ill-founded.
(Naturalization/Naturalisation)
Authors: Marx Reinhard , Li Yao
Published: June 2024

This chapter tackles the features and historical development of the 1951 Convention's Article 34. It explains the function of the provision, which primarily focuses on requesting Contracting States to facilitate the assimilation and naturalization of refugees. Moreover, the provision forms the legal bases for local integration and naturalization as some of the traditional durable solutions to refugeehood. The soft obligation imposed by Article 34 primarily focuses on the long-term solution by naturalization. The chapter then elaborates on the balance between local integration, naturalization, and voluntary return after it was disrupted due to the fall of the Iron Curtain in 1989.
Convention/Article IX of the 1967 Protocol
Authors: Geiß Robin , Li Yao
Published: June 2024

This chapter examines the extent of the 1951 Convention's Article 44 and the 1967 Protocol's Article IX. It starts with identifying the standard denunciation clause in Article 44 and Article IX. Multilateral treaties of unlimited duration allow States parties an unconditional right to withdraw. A denunciation releases the denouncing party from any obligation further to perform the treaty in relation to the other parties of the 1967 Protocol. The chapter clarifies that denunciation or withdrawal expresses the same legal concept since it is a procedure initiated unilaterally by a State that wants to terminate its legal engagements under a treaty.
Subject matter and objectives
Authors: Brewczyńska Magdalena
Published: June 2024

This chapter details Article 1 of the EU Law Enforcement Directive (LED), which outlines its subject-matter and objectives. The first paragraph of Article 1 LED indicates the boundaries of the scope of application of the LED with a reference to two criteria: personal and material. The personal limitation presupposes application of the LED only to the processing of personal data carried out by ‘competent authorities’ defined in Article 3(7) LED. According to the material limitation, the rules of the LED apply exclusively to the processing that takes place ‘for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security’. Meanwhile, Article 1(2) LED corresponds to Article 16(2) TFEU, which specifies the two-fold rationale underlying the LED — the protection of individuals and free movement of personal data. Finally, Article 1(3) LED provides that as far as the provision of safeguards for the protection of the rights and freedoms of the data subjects is concerned, the Member States are not precluded from providing higher standards in this respect.
Right of access by the data subject
Authors: Dimitrova Diana
Published: June 2024

This chapter explores Article 14 of the EU Law Enforcement Directive (LED), which provides for the right of access by the data subject. The controller shall as a rule disclose all of the following data elements in response to an access request: (1) confirmation whether data processing concerning the data subject is taking place; (2) disclosure of the data; (3) information on the details of the processing, as well as (4) information on the available rights and remedies. It is important to note that the right of access is not an absolute right and that the controller is obliged to provide the above information only as long as the provision of the said information will not prejudice an ongoing investigation, public and national security, or the interests of third persons. Ultimately, the controller should ‘facilitate the exercise’ of the right of access. Moreover, the response to an access request needs to be clear and understandable to the data subject.