bluuebunny/crossref_metadata_2025 huggingface dataset:
Prevention of Trafficking in Persons
Authors: Lelliott Joseph
Published: June 2024

This chapter highlights Article 9 of the Trafficking in Persons Protocol. While the dynamics of trafficking are not fully understood, and its causes many and complex, preventive measures can be said to broadly address three categories of factors: those that (1) increase the vulnerability of those at risk of trafficking; (2) create demand for trafficking and the goods and services produced by victims; and (3) allow traffickers to operate with impunity. In addition to a general obligation to prevent and combat trafficking, Article 9 requires States Parties to protect victims from re-victimization; undertake research, information and media campaigns, and social and economic initiatives; address factors that make persons vulnerable to trafficking; and discourage demand. The Protocol’s prevention obligations are properly situated in the context of States’ duty under international law to exercise due diligence and take all reasonable measures to prevent violations of human rights. Measures to prevent trafficking must themselves also be consistent with States’ obligations under international human rights law and, in particular, the prohibition against discrimination.
Border Measures
Authors: Taylor Matthew R
Published: June 2024

This chapter reviews Article 11 of the Trafficking in Persons Protocol. Though transnational movement is not a necessary element of trafficking in persons, it is not uncommon for the crime to involve the transport of victims across international borders. Consequently, the border may be the first opportunity for States to detect and prevent cases of trafficking, notwithstanding the well-recognized difficulties of identifying victims at borders. Article 11 purports to focus on border measures, though the activities identified within it extend beyond States’ physical borders. Four primary ideas are reflected in this Article: (1) that States Parties should strengthen border measures to prevent and detect trafficking in persons; (2) that specific measures should be taken to deter and respond to trafficking facilitated through the use of commercial carriers; (3) that States Parties should impose immigration consequences on those who engage or are otherwise implicated in trafficking; and, (4) that cooperation between border agencies of States Parties is important in responding to trafficking.
Security and Control of Documents
Authors: Taylor Matthew R
Published: June 2024

This chapter discusses Article 12 of the Trafficking in Persons Protocol. Article 12 addresses the role that travel and identity documents play in facilitating the trafficking of persons. It does this by focusing on steps that States Parties can take in relation to document creation, issuance, and quality, with the ultimate goal of implementing processes that cannot be abused and producing documents that cannot be easily forged or fraudulently used. This Article is identical to Article 12 of the Smuggling of Migrants Protocol and both should be interpreted consistently. The content of Article 12 of the Trafficking in Persons Protocol is also reflected in some regional trafficking instruments. Article 12 is one of the many articles in the Convention and Protocols that is dependent upon resources and technological advancement that comes along with them for meaningful implementation.
Legitimacy and Validity of Documents
Authors: Taylor Matthew R
Published: June 2024

This chapter examines Article 13 of the Trafficking in Persons Protocol. Article 13 is identical in its purpose and scope to Article 13 of the Smuggling of Migrants Protocol and is consistent with the overarching objectives of UNTOC concerning international cooperation. It requires a State Party, where requested by another Party, to verify within a reasonable time whether a document purporting to have been issued by it is legitimate and valid. The purpose of Article 13 is linked closely to the key objectives of the Protocol itself: the prosecution of trafficking in persons cases and international cooperation to that end. Action pursued under this Article can be important at the investigative stage, where verification can play a critical role in supporting the laying of criminal charges against traffickers. Document verification is also important for ensuring appropriate responses to victims including, as appropriate, the repatriation of victims.
Settlement of Disputes
Authors: Schloenhardt Andreas
Published: June 2024

This chapter focuses on Article 15 of the Trafficking in Persons Protocol. Article 15 provides several avenues for the settlement of disputes between States Parties over the interpretation or application of the Protocol. As a first step, it encourages States Parties to settle their disputes through negotiations. If negotiations fail to produce an outcome, as a second step, the dispute may be submitted to arbitration. Thirdly, if the arbitration did not result in an agreement within six months, the dispute may be referred to the International Court of Justice (ICJ). Article 15(3) permits States Parties to opt out of arbitration and ICJ processes by making a reservation; that reservation may later be withdrawn pursuant to Article 15(4).
Signature, Ratification, Acceptance, Approval and Accession
Authors: Schloenhardt Andreas
Published: June 2024

This chapter assesses Article 16 of the Trafficking in Persons Protocol. Article 16 sets out the process by which States as well as regional economic integration organizations can become parties to the Protocol and thus be bound by it. Paragraph (1) specifies the time period 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 text of Article 16 is the same as that of Article 36 of UNTOC and reference is made to the commentary provided on that Article. Following the removal of references to reservation to provisions of the Protocol, an Interpretative Note was added, stating that ‘while the protocol has no specific provisions on reservations, it is understood that the Vienna Convention on the Law of Treaties of 1969 applies regarding reservations’.
Statement of Purpose
Authors: Taylor Matthew R
Published: June 2024

This chapter reviews Article 2 of the Smuggling of Migrants Protocol. Like preambles, statements of purpose help to inform the overall interpretation of a treaty. The final text of the statement of purpose in Article 2 is a single paragraph and emphasizes three primary objectives: (1) preventing and combating smuggling of migrants; (2) international cooperation to support the first objective; and (3) protecting the rights of smuggled migrants. Protecting the rights of smuggled migrants was not an immediate priority for the drafters of the Smuggling of Migrants Protocol and explicit acknowledgement of the need to safeguard the rights of smuggled persons in Article 2 did not come until late in the negotiations. The Protocol as a whole is principally a criminal justice instrument; as such, obligations pertaining to the protection of smuggled migrants are quite vague and do not create any new rights for smuggled persons.
Criminal Liability of Migrants
Authors: Schloenhardt Andreas
Published: June 2024

This chapter evaluates Article 5 of the Smuggling of Migrants Protocol. Article 5 recognizes that smuggled migrants should not be criminalized merely for being the object of the offence of migrant smuggling, an obligation that closely resembles similar non-criminalization principles in international refugee law. Indeed, the right of displaced persons to seek protection without fear of retribution is one of the most fundamental precepts on which international refugee law is built. The basic effect of Article 5 is to shield smuggled migrants from criminal prosecution arising from the fact of having been smuggled. This limitation on the scope of criminalization under the Protocol is an expression of the principle identified in the Legislative Guides, that ‘it is the smuggling of migrants and not migration itself which is the focus of criminalization’.
Criminalization
Authors: Schloenhardt Andreas
Published: June 2024

This chapter focuses on Article 6 of the Smuggling of Migrants Protocol, which sets out the criminalization requirements. Paragraph 1 sets out three offences that must be established under domestic law: (a) the smuggling of migrants; (b) producing, procuring, providing, or possessing a fraudulent travel or identity document for the purpose of enabling the smuggling of migrants; and (c) enabling illegal stay. Paragraph 2 extends criminal liability to attempts, participants, organizers, and directors. Paragraph 3 requires States Parties to establish aggravated circumstances for cases in which the life and safety of migrants are put at risk or in which migrants are treated particularly poorly. Finally, paragraph 4 reserves States Parties the right to take measures against persons who commit offences under their domestic laws.
Border Measures
Authors: Taylor Matthew R
Published: June 2024

This chapter studies Article 11 of the Smuggling of Migrants Protocol. While border controls are, to some degree, necessary to combat migrant smuggling, it is well-recognized that they may also contribute to the problem. Simply put, migrants who are unable to enter a State through legal avenues, and are also unable to evade border controls, may turn to the services of smugglers. This tension is reflected in, but not resolved by, the Smuggling of Migrants Protocol, which encourages respect for the free movement of peoples and respect for migrants’ human rights, including that to non-refoulement, while also requiring States Parties to strengthen border measures. Four primary ideas are reflected in Article 11: (1) that States Parties should strengthen border measures to prevent and detect migrant smuggling; (2) that specific measures, including criminal law measures, should be taken to deter and respond to smuggling facilitated through the use of commercial carriers; (3) that States Parties should impose immigration consequences on those who engage or are otherwise implicated in smuggling; and, (4) that cooperation between the border agencies of States Parties is important in responding to migrant smuggling.
Amendment
Authors: Schloenhardt Andreas
Published: June 2024

This article sets out the process to make amendments to the Trafficking in Persons Protocol. It uses the same text as Article 39 of the United Nations Convention Against Transnational Organized Crime (UNTOC) and the equivalent provisions under the Protocol. It is also based on the general rules for formal changes to international treaties, set out in Articles 39 and 40 of the Vienna Convention on the Law of Treaties. The article stipulates how proposals to amend the Protocol can be submitted, circulated, and adopted. It spells out the specific role of regional economic integration organizations if amendments are voted on and concerns the entry into force of any amendment.
Relation with the United Nations Convention against Transnational Organized Crime
Authors: Calderoni Francesco
Published: June 2024

This article provides a background on how the protocol on firearms supplements the United Nations Convention against Transnational Organized Crime and interpreted together with the Convention. It ensures the coordination between the Convention and its Protocols. It also talks about the application of the Convention provisions to the Firearms Protocol whenever possible and with only the necessary adaptations due to the different topics. The article ensures that offences established according to criminalization provisions of the Protocols fall within the scope of application of the Convention. It mentions offences that shall be regarded as offences established in accordance with the Convention.
Criminalization
Authors: Block Johannes
Published: June 2024

This article considers the criminalization of firearms trafficking as one of the essential pillars of the Firearms Protocol’s approach. It mentions criminal prosecution that will be accompanied by confiscation of the relevant weapons and national legislation that ensures that the implementation of the Protocol creates the relevant links between certain measures. It also obliges States Parties to enact criminal law provisions to accompany and enforce the preventive provisions of the Protocol. The article covers criminalization requirements that target two stages of illicit firearms trade: the manufacturing and the trafficking of firearms, their parts and components, and ammunition, and the potential subsequent acts in the form of tampering with markings. It outlines offences, such as forms of complicity and attempt, that cover a plethora of acts that may vary greatly in their wrongfulness.
Marking of Firearms
Authors: Block Johannes
Published: June 2024

This article plays a crucial role for the success of any serious attempt at combatting the illicit arms trade, focusing on the unique identification markings on firearms. Unique markings are an important tool in combatting illegal trade and manufacture as they can show where the arms came from and how they entered into illegal circulation. It considers the traceability of firearms as a key element of preventing, combating, and eradicating illicit manufacture and trade. The article obliges States Parties to ensure that markings are applied to firearms in three cases: at the time of manufacture, at the time of import, and when firearms are transferred from State-use to permanent civilian use. It points out that marking requirements apply only to firearms and neither ammunition nor parts and components are subject to these obligations.
Security and Preventive Measures
Authors: Block Johannes
Published: June 2024

This article seeks to address the selling of surplus State stocks without proper authorization and the unauthorized diversion or reselling of firearms that were originally subject to authorized transactions, which is a potential source of illegal firearms for use in organized crime and armed violence. It obliges States Parties to implement security measures to prevent illegal firearms from ending up on the illicit market. It also favours a fragmentation of measures and controls at the national level instead of promoting an international standard of security and control measures. The article enhances the effectiveness of import, export, transit, and border controls as well as police and customs trans-border cooperation. It differentiates between measures which could be taken on a national level and those suited for regional and international levels.
Training and Technical Assistance
Authors: Taylor Matthew R
Published: June 2024

This article recognizes that the enactment of new laws or the implementation of programmes or polices to combat the illicit activities and their links to organized crime are targeted by the Firearms Protocol is unlikely to be successful without also implementing training and technical assistance measures to ensure that those tasked with implementing relevant legal and regulatory frameworks have the ability and tools to do so. It complements other measures, such as the comprehensive provisions on training and technical assistance detailed in the United Nations Convention Against Transnational Organized Crime (UNTOC). It also itemizes specific areas of training that should be implemented, including tracing, intelligence gathering, and inspections at points of entry and exit. The article promotes the universal implementation of the Firearms Protocol’s substantive obligations. It contemplates the receipt of technical, financial, and material assistance.
Brokers and Brokering
Authors: Block Johannes
Published: June 2024

This article provides a basic, but non-mandatory set of rules to regulate and control the operations of firearms brokers. It considers brokers to be central in facilitating arms deals and can consequently play an important role in circumventing legal and factual impediments to such deals. Brokers find suppliers and arrange transfers, and if they cooperate with criminal elements may provide fraudulent or corruptly obtained documentation and arrange necessary finances for the respective deals. The article defines ‘brokering’ as activities that involve the arranging of transactions or transfers of firearms and ammunition by persons or companies that are not direct parties to the transactions and do not usually come into direct contact with, or gain possession of, the actual items. It suggests different approaches to regulating brokering activities, which could be established alone or in combination with other models.
Article 18 of the VCLT: Obligation not to defeat the object and purpose of a treaty prior to its entry into force
Authors: McRae Belinda
Published: June 2024

This entry examines Article 18 of the Vienna Convention on the Law of Treaties (VCLT), requiring that States must refrain from acts that would defeat a treaty's object and purpose. Article 18 VCLT has rarely featured in the decisions of international courts and tribunals. Domestic courts have applied it more frequently. Investment claimants have sought to accord Article 18 more significance than its terms can reasonably bear by seeking to use it as a vehicle for the provisional application of the treaty. However, investment tribunals have predominantly rejected these attempts. The entry concludes by expressing the hope that, as the decisions on Article 18 become more developed, the precise contours and textual limits of Article 18 will be borne firmly in mind, and that the domestic decisions properly recognizing those limits will be profitably deployed to assist that development.
Article 27 of the VCLT: Internal law and observance of treaties
Authors: Yotova Rumiana
Published: June 2024

This entry discusses internal law and observance of treaties in accordance with Article 27 of the Vienna Convention on the Law of Treaties (VCLT). According to the provision, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Moreover, the principle set out in Article 27 VCLT has been applied in the practice of States and international adjudication for a long time. Despite the long history of the principle, the interpretation of the content of Article 27 varies and is often interrelated to related principles extending its scope by binding states concerning their acts on the domestic plane. The entry then tackles the implementation of Article 27 in general international law, investment law, and arbitration.
Article 29 of the VCLT: Territorial scope
Authors: Lindsay Emma , Webb Philippa
Published: June 2024

This entry covers Article 29 of the Vienna Convention on the Law of Treaties (VCLT). The provision, composed of a general rule and an exception, provides guidance as to territorial scope of application of treaties. It sets out the general rule that a treaty applies to the entire territory of a state unless there is evidence of a contrary intention. The entry compares the interpretation and application of Article 29 by international courts and investor-State tribunals. While practice is scarce, alignment between the interpretation of international human rights treaties and investment treaties can be seen in the approach to recent cases involving the Russia–Ukraine conflict.
Parts IV and V of the VCLT: Amendment, invalidity, termination, and suspension of treaties
Authors: Sobota Luke , Keene Amelia
Published: June 2024

This entry elaborates on the principles of international law governing amendment, invalidity, termination, and suspension of treaties, as reflected in the Vienna Convention on the Law of Treaties (VCLT). It details how arbitral tribunals have applied these principles in the context of investment treaties, comparing this with the approach of other international courts, such as the International Court of Justice. It finds that in many cases, specific provisions on termination or amendment are established in the investment treaty itself, such that a tribunal need not have recourse to the VCLT rules. This is consonant with the scheme of the VCLT. The entry also finds that there are few areas of divergence between investment and non-investment contexts in applying Parts IV and V of the VCLT.
Article 62 of the VCLT: Fundamental change of circumstances
Authors: Mbengue Makane Moïse
Published: June 2024

This entry covers Article 62 of the Vienna Convention on the Law of Treaties (VCLT) that is concerned with fundamental change of circumstances. Pacta sunt servanda is a fundamental legal principle dictating that agreements must be kept, and Article 62 provides an important but limited exception to the pacta sunt servanda rule. Codification by the International Law Commission (ILC) transformed the principle of fundamental change of circumstances (rebus sic stantibus) from a legal fiction to a well-defined provision with restricted applicability, and ICJ decisions have fleshed out how this principle operates. Rebus sic stantibus principle is part of customary international law, given that states have frequently invoked it to justify the termination and modification of treaties. The principle has only rarely featured in investor-state arbitration, and mostly indirectly. Like pacta sunt servanda, rebus sic stantibus is essential for peace and stability. It ensures that the original intention of the parties is safeguarded. Its restricted character is essential.
Article 15 of the ARSIWA
Authors: Annacker Claudia , Horváth Enikő
Published: June 2024

This entry examines Article 15 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Article 15 introduces the concept of a composite breach, i.e., a series of actions or omissions defined in aggregate as wrongful, and specifies the time of the occurrence of a composite breach and its duration. The entry analyses the application of the provision in general international law and international investment law. While there is little jurisprudence on Article 15 in general international law, investment treaty tribunals frequently rely in this Article when assessing acts and omissions that, in aggregate, impact on an investment, and their jurisprudence on the elements of a composite act may have an impact on general international law.
Article 55 of the ARSIWA
Authors: Bordin Fernando Lusa
Published: June 2024

This entry examines the notion of lex specialis as per Article 55 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). It discusses its requirements and the practice of international courts and tribunals, including investment tribunals. International investment law has provided a fertile ground for the lex specialis principle and for the intricate relationship between special (treaty) rules of treaty law and general (customary) rules. Investment tribunals have remained faithful to the basic tenets articulated in the work of the International Law Commission. Still, they found solutions in practice that are valuable both for dealing with future cases and for drafting treaty provisions where the scope of lex specialis is defined.
The procedure for succession to bilateral investment treaties
Authors: Sarvarian Arman
Published: June 2024

This entry covers the procedural rules of general international law by which a State might succeed to a Bilateral Investment Treaty (BIT). It explores how arbitral tribunals and domestic courts interpret and apply the rules of State succession in investment disputes. Several issues affected international investment law, some of which include the transfer of rights and obligations in a BIT and the jurisdiction of an investment arbitral tribunal based on that treaty. The entry then details the limited scope for the direct applicability of the Vienna Convention on the Succession of States with respect to Treaties 1978 (VCSST) to BITs. It then considers the key issue surrounding the interpretation of silence.
Succession in respect of cession, unification and separation of States
Authors: Devaney James G , Tams Christian J
Published: June 2024

This entry concerns succession in respect of cession, unification, and separation of States. State succession denotes the notion of the definitive replacement of one State by another in respect of sovereignty over a given territory. In the absence of a generally accepted treaty framework, questions of State succession typically are resolved either by general rules of customary international law or by special agreements reached by States affected by instances of succession. The entry details the key concepts of cession or transfer of territory, and unification and separation of States. It concludes that there is significant alignment between investment practice and more general practice relating to the law of State succession.
State Immunity in investment arbitration
Authors: Reinisch August
Published: June 2024

This entry explores the key concepts of the customary rules on State immunity in investment arbitration. State immunity is primarily a post-arbitral phenomenon that emerges when successful investors try to enforce an arbitral award and seek assets exempt from enforcement immunity. The entry looks into how investment tribunals use and rely upon concepts derived from the law of State immunity. This has been most prominent when tribunals had to determine whether certain acts allegedly in violation of investment treaty standards could be attributed to host States. It concludes that, due to immunity mostly becoming relevant only in the post-award phase, there is no indication that the limited invocation of State immunity concepts by investment tribunals has influenced general international law and dispute settlement practice.
Cross-cutting substantive aspects
Authors: Zhou Jingyuan , Puig Sergio
Published: June 2024

This entry examines cross-cutting substantive matters using the North American Free Trade Agreement (NAFTA) example. It discusses the interpretation of substantive treatment standards by the International Court of Justice (ICJ), NAFTA Chapter Eleven tribunals and other international courts and tribunals, notably the Iran-United States Claims Tribunal (IUSCT). By comparing such decisions, it concludes that alignment is found more often in the interpretation of expropriation and the minimum standard of treatment (MST)/fair and equitable treatment (FET), whereas decisions on national treatment and most-favoured-nation (MFN) diverge. Five reasons may have contributed to these misalignments: (1) the focus and scope of the subject matter of disputes, (2) the treaty texts and textual ambiguity of IIAs, (3) the institutional structure of NAFTA, (4) the fact-specific nature of the inquiry to find a violation of substantive standards of treatment, and (5) the evolution of jurisprudence and State practices. Nevertheless, NAFTA tribunals have made the ICJ jurisprudence relevant for ISDS.
The international law minimum standard of treatment
Authors: Howse Robert
Published: June 2024

This entry looks into the international law minimum standard of treatment (MST). The entry details its emergence as customary international law, describes its contours and requirements, and application in investment law. In particular, it considers the relationship of the MST to the fair and equitable treatment (FET) standard in North American Free Trade Association (NAFTA) awards and the changes brought by the revisions of NAFTA under the United States Mexico Canada Agreement (USMCA). The entry finds that recently a treaty-based approach to defining international standards for treatment of investors and investments dominates. It concludes that the normative content in these recent treaty provisions overlaps considerably with that of contemporary regional and multilateral human rights instruments.
Cross-cutting procedural powers of international courts and tribunals
Authors: Miles Cameron
Published: June 2024

This entry focuses on cross-cutting procedural powers of international courts and tribunals (ICT), including jurisdiction and admissibility, provisional measures, applicable law, rules of evidence and the finality of judgments and awards. It stresses consent as the source of international jurisdiction as a matter of general international law and international investment law (IIL) with IIL tribunals thus operating by a general procedural law rooted in the principle of state consent to international jurisdiction. Yet, the entry finds that investment tribunals have begun to develop their ownpractice on counterclaims and costs. Moreover, through their constituent instruments and procedural rules, they have rendered other concepts such as extinctive prescription partly redundant. This not to say that IIL seals itself from the wider system of international dispute settlement. Instead, the institutional features of the IIL and investment arbitration produce bespoke outcomes, as their drafters intended.
Nationality
Authors: Giorgetti Chiara
Published: June 2024

This entry highlights the importance of nationality as the foundation for protecting persons under international law. It considers the acquisition and recognition of nationality of natural persons before considering the general principles regarding the nationality of legal persons. Nationality provides the crucial link between the State and natural and legal persons that ties the substantive principles of international investment law to those individuals who can benefit from them. Moreover, the practice of international investment tribunals and other international courts and tribunals shows a remarkable difference between the approach of assessing nationality for natural and legal persons. The entry explains the key role of nationality in international investment law, which underlines that the practice of international courts and tribunals on the issue is both frequent and relevant.
Interpretation of the 1951 Convention
Authors: McAdam Jane , Dunlop Emma
Published: June 2024

This chapter elaborates on the interpretation of the 1951 Convention in domestic courts. It looks into the approaches of the courts in the United Kingdom, Canada, Australia, New Zealand, and the United States to determine the extent of dependence on the principles of treaty interpretation. The chapter explains the principles are based on the Vienna Convention on the Law of Treaties (VCLT). Due to the absence of an international refugee court to act as the final arbiter of the 1951 Convention interpretation, there is no uniform international practice or single interpretation of the aforementioned treaty. The chapter mentions the supervisory role of the United Nations High Commissioner for Refugees (UNHCR) in overseeing the implementation and application of the 1951 Convention.
Regional Developments: Europe
Authors: Klug Anja
Published: June 2024

This chapter provides an overview of the most important characteristics of refugee law in Europe. It discusses regional developments surrounding refugee protection in the Council of Europe, which either have a direct or indirect impact on the 1951 Convention and the 1967 Protocol. Europe is a region with complex hugely different national asylum systems and practices, so refugees and asylum-seekers who manage to enter Europe benefit from strong regional human rights and refugee protection systems. The chapter also looks into the European Union's common European asylum system. It considers how diverting EU and national practices threaten the effective implementation of the 1951 Convention.
Regional Developments: Africa
Authors: Van Garderen Jacob
Published: June 2024

This chapter discusses the development of refugee law in Africa. It considers the historical patterns of conflict, migration, and displacement that occur across the African region. Nearly all African countries ratified the OAU Refugee Convention and applied the provisions through domestic legislation, but lofty ideas imposed by the treaties are hard to remove after six decades. The developments include the patterns of conflict and displacement in Africa post-1951 key provisions of the OAU Refugee Convention. The chapter also tackles the role of the African Commission on Human and Peoples’ Rights (ACmHPR) as well as the role of African domestic courts in promoting refugee protection.
Article 1 A, para. 1 1951 Convention
Authors: Schmahl Stefanie
Published: June 2024

This chapter focuses on the features of Article 1's paragraph 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 C
Authors: Kneebone Susan , O’Sullivan Maria
Published: June 2024

This chapter tackles Article 1 C of the 1951 Convention, which indicates the conditions of refugee fronting cessation clauses. It elaborates on the two-stage procedure of the cessation of refugee status, which should be strictly interpreted under the Article of the Vienna Convention on the Law of Treaties (VCLT) while also taking the 1951 Convention into account. However, the cessation under the 1951 Convention should not necessarily trigger the automatic return of the refugee. The chapter explains that cessation is also to be distinguished from revocation or cancellation of refugee status. It lists the six circumstances wherein the cessation of refugee status is imposed.
Article 1 E
Authors: Li Yao
Published: June 2024

This chapter elaborates on the function of Article 1 E of the 1951 Convention, which was originally aimed at German refugees. It refers to a special group of people who qualify for refugee status but enjoy the rights of national citizens despite their lack of formal citizenship. The article's object and purpose revolve around excluding persons from refugee protection who do not need any international protection since they have the status of national citizens. Additionally, access to refugee status is excluded ipso facto because the individual may resort to effective protection similar to that of citizenship upon being admitted to the country of sojourn. The chapter explains how Article 1 E is an integral part of the balanced system of international refugee protection prescribed by the Convention.
(General Obligations/Obligations Générales)
Authors: Lambert Hélène
Published: June 2024

This chapter considers the general obligations surrounding Article 2 of the 1951 Convention. Article 2 constitutes the first provision to refer to the duties of refugees in the context of international status. Since the Universal Declaration of Human Rights' commentary lacks State practice on the article due to its character as a moral obligation, some countries like Canada and New Zealand use Article 2 beyond its original scope and overall humanitarian purpose of the 1951 Convention. The chapter then covers the key issues of drafting a provision on the refugees' general obligation. It clarifies that Article 2 was intended to be a qualifying clause for Article 1. To lessen misinterpretation, Article 2 intended to exclude any provision restricting or prohibiting the political activities of refugees because the 1951 Convention focused on refugees looking for peaceful and normal lives
(Religion/Religion)
Authors: Walter Christian
Published: June 2024

This chapter discusses the function of Article 4 of the 1951 Convention to grant refugees in the host country freedom of religion. Since the issue was mentioned expressly, freedom of religion receives a prominent place compared to other fundamental freedoms which refugees may rely on in the host country. As a result, the article's prominence indicates that violations of freedom of religion are often important reasons for fleeing the country of origin. It acknowledges the limited practical impact of the article due to the national treatment standard. However, the symbolic importance of Article 4 should not be underestimated since it underlined the issue surrounding the lack of religious freedom.
(Exemption from Reciprocity/Dispense de Réciprocité)
Authors: Skordas Achilles , Ineli-Ciger Meltem
Published: June 2024

This chapter focuses on the features of the 1951 Convention's Article 7. Article 7 primarily focuses on the general standard for the treatment of refugees while correlating the 1951 Convention with external legal regimes. The provision then introduces an exemption from the condition of similar treatment of refugees and aliens after three years of residence. The chapter elaborates on the interpretation of Article 7 concerning the key themes of reciprocity treatment accorded to aliens and the exception where the Convention contains more favourable provisions. It explains how the article protects the rights of refugees against restrictive practices of national administrations.
Requirements for Refugee Determination Procedures
Authors: Hofmann Rainer , Schmidt Adela , Estifanos Lssan
Published: June 2024

This chapter provides an overview of the developments leading to the establishment of international law minimum standards for refugee determination procedures. It acknowledges that international treaty law on refugees is binding upon States concerning the issues of refugees and their rights that they have to recognize. The 1951 Convention's Chapter V on administrative measures contain mainly provisions applicable to people recognized as refugees in the sense of international law. The chapter then looks into the difference between the right of access to determination procedures and procedural minimum standards. It highlights the significance of the procedural aspects of the asylum applicants' international protection.
Refugees at Sea
Authors: Bank Roland
Published: June 2024

This chapter considers the phenomenon of refugees fleeing persecution by sea. It notes the tragedies are well-known of Jewish refugees seeking refuge from Nazi persecution by the German Third Reich or its allies. In recent times, the notion of mixed migration flows arose in the political discourse and media as the discussion is often triggered by dramatic cases with a high number of casualties when unseaworthy boats sunk. Article 31 of the 1951 Convention obliges States not to impose penalties on refugees coming directly from a territory where they may incur persecution. The chapter discusses the general obligations for the establishment of a search and rescue system.
(Liberal Professions/Professions Libérales)
Authors: Edwards Alice
Published: June 2024

This chapter focuses on the 1951 Convention's Article 19. It explains that Article 19 calls upon States parties to recognize degrees or diplomas to allow refugees to work in their professions for human dignity, and integration, and to satisfy refugee needs. The article primarily aims to regulate and streamline the accreditation of qualifications held by refugees intending to work in liberal professions. While Article 19 does not bar refugees from practising in the liberal professions, it does not give any special exemptions to refugees from professional accreditation, registration or other legal requirements to practise liberal professions as applicable in each host State. The chapter explains that Article 19 does not impose greater standards on refugees in terms of having their certificates accredited than on other aliens. Human rights
(Housing/Logement)
Authors: Leckie Scott , Simperingham Ezekiel
Published: June 2024

This chapter looks into Article 21 of the 1951 Convention. It highlights the importance of the right to housing for refugees under international human rights law. The provision needs contracting states to accord refugees lawfully staying in their territory as favourable as possible and not press favourable than aliens in the same circumstances. However, Article 21 only provides only qualified and minimal protection of the right for a subset of refugees lawfully staying in the territory. The chapter explores the provision's considerable developments on the grounds of content and associated obligations of the right to housing since its drafting and inclusion in the 1951 Convention.
(Labour Legislation and Social Security/ Législation du Travail et Sécurité Sociale)
Authors: Lester Eve
Published: June 2024

This chapter notes Article 24 of the 1951 Convention. The provision provides a comprehensive framework of social assistance protection to refugees who are lawfully staying in the territory of a contracting State. The chapter also considers how Article 23 and Article 24, which addressed public relief, and labour legislation and social security respectively, complement each other in that they ensure the narrow interpretations of social security. It also recognizes the sympathetic consideration given to honouring reciprocal social security agreements between contracting and non-contracting States. Moreover, Article 24 exacted considerable influence on the States' laws, regulations, and interpretation of terms like lawfully staying.
(Freedom of Movement/Liberté de Circulation)
Authors: Zieck Marjoleine
Published: June 2024

This chapter notes how Article 26 secured the right of refugees to choose their place of residence and to move freely within the territory of the State where they find themselves. Freedom of movement is vital in the sense that it is often a precondition to making use of other rights laid down in the 1951 Convention, such as the right to work and the free development of a person. However, Article 26 does not indicate when and for what purposes restrictions are justified. The provision places refugees on the same footing and equality of treatment as aliens. The chapter explains how the European Court is bound to apply the European Convention, which meant that States have to observe Article 26.
(Prohibition of Expulsion or Return (‘Refoulement’)/ Défense d’Expulsion et de Refoulement)
Authors: Wennholz Philipp , Rikhof Joseph
Published: June 2024

This chapter covers the extent of Article 33's paragraph 2. It explores in the paragraph specifying how a refugee may be subjected to refoulment if they impose a threat to national security in the country where refuge is sought. The exclusion clause aims to prevent the enjoyment of protection under the 1951 Convention. The chapter then discusses the drafting history of Article 33's paragraph 2 and its subsequent declarations and reservations. It explains that the provision should be applied carefully and restrictively due to its inherent interconnection to fundamental guarantees of general human rights law,l such as the prohibition of torture and inhumane treatment.
(Relation to Previous Conventions/Relations avec les Conventions Antérieures)
Authors: Schmahl Stefanie
Published: June 2024

This chapter elaborates on the features and functions of Article 37 of the 1951 Convention. It explains that the provision was established to address when parties would be subjected to different obligations and international instruments. Article 37's solution indicates that States parties to the 1951 Convention may not invoke the provisions of the pre-1951 international agreements relating to the status of refugees or the issue of travel documents vis-à-vis each other. However, an exception arises when the involved provisions were perpetuated by the virtue of Articles 5, 7, and 28 of the 1951 Convention. The chapter clarifies that Article 37 ensures that previous historical international instruments will cease to work when they adhere to the 1951 Convention.
Convention/Article VIII of the 1967 Protocol
Authors: Geiß Robin , Li Yao
Published: June 2024

This chapter tackles the analysis and function of Article 43 of the 1951 Convention and Article VIII of the 1967 Protocol. It explains that a multilateral treaty can be enforced when met with necessary conditions, such as the Article 24 of the Vienna Convention on the Law of Treaties (VCLT). The provision also regulates the 1951 Convention's entry into force of States' ratification or accession. The chapter notes that the 1967 Protocol entered into force after Sweden deposited its instrument of accession. It elaborates on the specific details needed for the ratification or accession prior to the entry into force.
(Revision/Revision)
Authors: Einarsen Terje
Published: June 2024

This chapter details the function of revision found in Article 45 of the 1951 Convention. It explains how the provision creates a legal basis for amendment and modification of the 1951 Convention. However, the revisions of treaties are always legally possible if certain procedural requirements are met, even if it was a specific treaty provision disallowing revision. Thus, the provision reminds contracting States and new potential parties that the 1951 Convention can be amended if needed. The chapter then explains that the 1967 Protocol constituted a ‘successive treaty’, which became an important achievement in the history of international refugee protection.
Convention/Article X of the 1967 Protocol
Authors: Geiß Robin , Li Yao
Published: June 2024

This chapter focuses on Article 46 of the 1951 Convention and Article X of the 1967 Protocol. It explains the depository of a treaty playing an essential procedural role in ensuring the smooth operation of a multilateral treaty. Article 46 enumerates the Secretary-General's function as a depositary performed by the Treaty Section of the Office of Legal Affairs in the United Nations Secretariat. Similarly, Article X confirms and details the Secretary-General's designation and role as depositary of the 1967 Protocol. The chapter mentions that the enumeration of Article X's depositary notification is exemplary instead of conclusive. It examines the depositoary notifications of declarations, signatures, and researvations under Article 46 and Article X.
(Provisional Measures/Mesures Provisoires)
Authors: Davy Ulrike , Stern Rebecca Thorburn
Published: June 2024

This chapter cites that the 1951 Convention's Article 9 contains a derogation clause. It starts with how Article 9 abstains from detailing the measures the contracting States may provisionally apply once the requirements of the clause are met by certain events. Provisional measures are characterized by four broad elements: measures bound to certain situations, public interests, individualized nationality, and time. The chapter acknowledges that circumstances triggering the State powers under Article 9 are not normal. It also mentions the doubts that the article's measures are permissible under human rights law since the 1951 Convention's provisional measures became more or less outdated.
Scope
Authors: Vogiatzoglou Plixavra
Published: June 2024

This chapter focuses on Article 2 of the EU Law Enforcement Directive (LED), which defines its scope of application. Article 2(1) LED delineates the teleological and personal conditions of application, by referring to the purposes defined under Article 1 and the notion of competent authorities, as further defined within Article 3(7) LED. Insofar as data processing by courts and judicial authorities is concerned, specific rules may be imposed on a national level, while the competence of the supervisory authorities should not cover the processing of personal data where courts are acting in their judicial capacity. Article 2(2) LED formulates the material scope of the LED, which applies to the processing of personal data wholly or partly by automated means, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. Meanwhile, Article 2(3) LED provides for two limitations to the application of the LED, namely when processing takes place in the course of an activity that falls outside the scope of Union law, or when processing is carried out by EU institutions, bodies, offices, and agencies. The chapter then considers certain legal gaps in the protection of personal data within the field of security.