bluuebunny/crossref_metadata_2025 huggingface dataset:
Definitions
Authors: Tosoni Luca , Bygrave Lee A
Published: June 2024

This chapter assesses Article 3 of the EU Law Enforcement Directive (LED). A chief policy objective of Article 3 LED is to ensure that certain key data protection terms are defined and interpreted uniformly across different EU data protection instruments. Barring the definition of ‘competent authority’ in Article 3(7) LED, all of the definitions in Article 3 LED mirror the equivalent definitions in Article 4 of the General Data Protection Regulation (GDPR). A secondary objective of Article 3 LED is to help set the scope of the LED’s application. However, other provisions of the LED also contribute to determining its scope of application, and do so using terminology that is not defined in Article 3. Key terms in this regard are ‘criminal offences’ and ‘criminal penalties’ the meaning of which is elucidated in case law rather than legislation.
Distinction between different categories of data subject
Authors: Quintel Teresa , Mitsilegas Valsamis
Published: June 2024

This chapter explains Article 6 of the EU Law Enforcement Directive (LED), which requires the categorization into different types of data subjects. Article 6 LED and Recital 31 LED present a non-exhaustive list of different data subjects that are to be distinguished by competent authorities that fall within the scope of the Directive, where possible. Article 6 LED proposes to differentiate between persons with regard to whom there are serious grounds for believing that they have committed or are about to commit a criminal offence, persons who were convicted of a criminal offence, victims of a criminal offence, and other parties to a criminal offence. With regard to the latter category, Article 6(d) LED refers to persons who are called on to testify in investigations, persons who might provide information about a criminal offence, and contacts of suspects or convicted criminals. However, making a clear distinction between different categories of data subject is not always an easy and straightforward task, as the boundaries between the different roles are fluent and may overlap.
Limitations to the right of access
Authors: Dimitrova Diana
Published: June 2024

This chapter studies Article 15 of the EU Law Enforcement Directive (LED). Article 15 LED seeks to ensure that the imposed restrictions on the right of access to one’s personal data are not absolute and arbitrary, i.e., that they strike a fair balance between the interests of the law enforcement authorities and the rights and interests of the concerned data subjects through appropriate safeguards. This is especially because a restriction on the right of access could have an impact on different human and fundamental rights, such the right to data protection, fair trial, and effective remedies. To ensure this balance, Article 15 LED provides an opening clause, which allows Member States to adopt legislative instruments in order to restrict the exercise of the right of access. Article 15 LED regulates (1) the conditions under which the right may be restricted; (2) the grounds on which it may be restricted; (3) the information obligations of the controller towards the data subjects in such cases and the restrictions thereto; and (4) the controller’s documentation obligations.
Right to rectification or erasure of personal data and restriction of processing
Authors: Dimitrova Diana
Published: June 2024

This chapter explains Article 16 of the EU Law Enforcement Directive (LED), which regulates the exercise of three rights: the right to rectification, erasure of personal data, and restriction of processing. These rights allow data subjects to request corrective measures in relation to the processing of their personal data when the processing does not comply with the provisions of the LED, such as where the data are incorrect, incomplete, or they are stored for longer than legally allowed. However, since these rights might sometimes prejudice the exercise of the different law enforcement tasks, the three rights are not absolute. Article 16(4) LED regulates the transparency obligations of the law enforcement authorities towards the concerned data subject when any of these rights is wholly or partially restricted. Meanwhile, Article 16(5) and (6) LED provide that the rectification, erasure, and restriction of processing should be communicated to those authorities which received the data and rectification measures should be communicated to those authorities from which the data originated.
Processor
Authors: Mościbroda Anna
Published: June 2024

This chapter covers Article 22 LED that requires Member States to oblige controllers to exercise diligence when enlisting the data processor and to make sure that the data processor complies with the Law Enforcement Directive (LED). Article 22 LED lays down rules for engaging other processors and requires both the controller and processor to make sure that processing is governed by the contract or other legal act under the Union or Member State law. It outlines essential elements and obligatory stipulations that must be covered under the contract or legal act. The chapter describes the prominent role of data processors in today’s digital environment, such as providing cloud services. Article 22 LED frames the relationship between the controller and the processor by strengthening accountability and responsibility of data controllers and by requiring the processing to be governed by the contract or other legal act under the Union or Member State law.
Processing under the authority of the controller or processor
Authors: Mościbroda Anna
Published: June 2024

This chapter considers Article 23 LED as a legacy provision that reaffirms the principle of lawfulness by stating that any person who has access to personal data may process them in accordance with the instructions of the controller. Article 23 LED also emphasises the duty of confidentiality and data security. It explains how the data controller and data processor ensure that unauthorised persons do not gain access to data and that all persons who have access to data are under the obligation to maintain data secrecy. Article 23 LED clarifies that the obligation to act solely on the controller’s instructions and to maintain the confidentiality of data refers to processors. The chapter discusses Article 23 LED in the context of penalties that might be imposed for processing not conforming to the Law Enforcement Directive (LED), particularly criminal penalties provided for by some Member States.
Cooperation with the supervisory authority
Authors: Murphy Maria Helen
Published: June 2024

This chapter describes Article 26 LED as a short provision that states the essential obligation imposed on controllers and processors to cooperate with relevant supervisory authorities on request. The cooperation duty supports the ability of national supervisory authorities to carry out their role effectively as it would be challenging to assess the legality of any data processing without access to relevant insider information and assistance. The Irish implementation of Article 26 LED provides that a controller or a processor must cooperate with and assist the European Commission (EC) in the performance of its functions. The chapter details how Member States tend to mimic the general approach of Article 26 LED when implementing the cooperation duty into domestic law. Article 26 LED sets forth a simple duty to cooperate with supervisory authorities on their request.
Security of processing
Authors: Markou Christiana
Published: June 2024

This chapter outlines the obligation relating to the security of processing in Article 29 LED. Article 29 LED extends the security obligation to data processors, makes specific reference to automated processing, and lists specific security controls that will be implemented. The security provision of the Cypriot national law, namely Law 44(I)/2019, is identical to Article 29 LED. The chapter notes Czech Republic and Poland that do not refer to the state of the art and the costs of implementation as factors to be considered in the adoption of appropriate technical and organizational measures. Latvia imposes the relevant obligations on the controller while Estonia has not included any provisions corresponding to Article 29(1) LED.
Notification of a personal data breach to the supervisory authority
Authors: Tracol Xavier
Published: June 2024

This chapter explains Article 30 LED, which provides for new obligations of controllers to notify personal data breaches to the supervisory authority (SA). According to Article 30(6) LED, the notification must be communicated to the controller in the Member State without undue delay if the breach involves personal data that has been transmitted by or to the controller in another Member State. The chapter details new obligations provided for in Article 30 LED that imposes on providers of publicly available electronic communication services the obligation to notify personal data breaches to competent national authorities and to keep an inventory of such breaches. The scope of the obligation to notify under Article 30 LED is limited to breaches that are likely to result in a risk to the rights and freedoms of natural persons. Article 30 LED requires that controllers notify personal data breaches to the national SA.
Communication of a personal data breach to the data subject
Authors: Tracol Xavier
Published: June 2024

This chapter covers Article 31 LED, which provides for new obligations of controllers to communicate personal data breaches to relevant data subjects in certain cases. Article 31 LED imposes on providers of publicly available electronic communication services the obligation to notify the data subject when the personal data breach is likely to adversely affect the personal data or privacy of such data subject. It outlines the intention of Article 31 LED to prevent the negative consequences that may result from a personal data breach by specifically providing affected data subjects with the opportunity to take appropriate measures. The chapter discusses the obligation of the controller to communicate a personal data breach to data subjects that reflects a risk-based approach. Article 31 LED is closely related to the obligations of both controllers and processors to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
Independence
Authors: Bonnici Jeanne Pia Mifsud , Manuvie Ritumbra
Published: June 2024

This chapter reviews the qualification in Article 42(1) LED that the supervisory authority is to act with complete independence, which follows the rationale in the Commission v Germany case on the independence of a supervisory authority. The additional role of the supervisory authority under Article 17 LED necessitates the precondition of complete independence under Article 42 LED. It considers the requirement of Article 42 LED as a continuation of the already existing rationale imposed on the Member States to set up independent supervisory authorities for monitoring personal data processing. Article 42 LED specifically speaks to the independent nature of a supervisory authority. The chapter details how Article 42 LED sets out the requirements and conditions for ensuring the independence of supervisory authorities in the Law Enforcement Directive (LED).
Competence
Authors: McIntyre T J
Published: June 2024

This chapter focuses on the notion of competence within Article 45 of the EU Law Enforcement Directive (LED). Article 45(1) revolves around the territorial competence of the independent supervisory authorities while simultaneously ensuring the competency of each data processing authority (DPA) on the territory of its own Member State. On the other hand, Article 45(2) LED seeks to reconcile the application of data protection law with judicial independence. Moreover, the provision allows Member States to extend this exclusion to other independent judicial authorities. The chapter covers the legal background of Article 45 LED in correlation with the EU legislation, international instruments, national legislation, and case law of the Court of Justice of the European Union (CJEU).
Tasks
Authors: McIntyre T J
Published: June 2024

This chapter provides an overview of Article 46 of the EU Law Enforcement Directive (LED). Article 46 LED harmonises the tasks assigned to national supervisory authorities to promote consistent oversight of personal data processing in police and criminal justice matters. The provision broadens the tasks of national data processing authorities (DPAs) compared to their previous functions under FD regarding data shared between Member States. The chapter explains that the detailed and prescriptive nature of Article 46 LED correlates to the criticism that previous European and national rules were a patchwork of different regimes that created legal uncertainty and inconsistent enforcement. It also covers the analysis concerning supervisory authority tasks, the duty to perform tasks, and tasks to be free of charge under Article 46 LED.
Powers
Authors: McIntyre T J
Published: June 2024

This chapter examines Article 47 of the EU Law Enforcement Directive (LED) in correlation with the minimum powers which the Member States must confer on supervisory authorities. It presents the four powers to be given to the data processing authorities (DPAs) and three effective corrective powers that are not mandatory. To an extent, the narrow scope of the provision was mitigated by wider national implementations. The chapter mentions how the Court of Justice of the European Union (CJEU) gave a wide interpretation of Article 47's requirement in correlation to the effectiveness of the investigative, corrective, and supervisory powers. It also elaborates on the provision's scope of powers, which are investigative powers and advisory powers.
Activity reports
Authors: Tsolias Grigorios
Published: June 2024

This chapter discusses key concepts surrounding Article 49 of the EU Law Enforcement Directive (LED). It explains that activity reports of supervisory authorities serve as a tool aiming to fulfil multiple purposes, such as transparency, accountability and independence. The scope of activities in the annual reports of data processing authorities (DPAs) includes every task performed and all powers exercised by the DPAs according to their competence as per Articles 46 and 47 LED. The chapter elaborates on the legal background and analysis of Article 49 LED. It considers activity reports as part of DPAs' independence and competence while simultaneously being accountability and transparency tools.
Mutual assistance
Authors: Caruana Mireille M
Published: June 2024

This chapter provides an overview of Article 50 of the EU Law Enforcement Directive (LED). It explains that Article 50 LED is primarily concerned with the provision of relevant information and mutual assistance between supervisory authorities in the law enforcement area. The general purpose of Article 50 LED revolves around supervisory authorities to implement and apply the Directive consistently and establish measures for effective cooperation. The chapter discusses the application of Article 50 LED, which includes the circumstance where a supervisory authority is responsible but would need information from another supervisory authority. It considers the interplay of Article 50 LED with the key concepts of cooperation and enforcement, exchange of information and languages, confidential information, and informal cooperation.
Tasks of the Board
Authors: Gómez Navarro Ignacio
Published: June 2024

This chapter examines the importance of Article 51 of the EU Law Enforcement Directive (LED). It cites that Article 51 LED is the multilateral pillar, which involves joint action by all supervisory authorities through the European Data Protection Board (EDPB) on general issues arising from the LED. The cooperation aims to ensure the consistent application of the right to the protection of personal data throughout the EU in the area of police and criminal justice. The chapter mentions that the influence of the EDPB affects the sufficiency of its current powers to consistently apply and enforce LED. It then details the complexity of the task of ensuring consistency across the EU in line with the interplay between the LED and other EU instruments regulating the processing of law enforcement data.
Right to an effective judicial remedy against a controller or processor
Authors: Brouwer Evelien
Published: June 2024

This chapter details Article 54 of the EU Law Enforcement Directive (LED). It primarily revolves around the right to an effective judicial remedy against a controller or processor. According to the European Data Protection Board (EDPB), the right to effective judicial protection within the field of law enforcement data processing is defined as an essential safeguard. The right to effective remedies' rationale within the scope of the LED ensures the data subjects' access to effective legal remedies while protecting the preliminary dialogue between national courts and the Court of Justice of the European Union (CJEU). The chapter then presents the legal background and analysis of Article 54 LED in correlation to its scope of protection, transparency of decision-making, the right to lodge a complaint with a supervisory authority, and the right to appeal.
Penalties
Authors: Vavoula Niovi
Published: June 2024

This chapter examines the key concepts of penalties in line with Article 57 of the EU Law Enforcement Directive (LED). Article 57 LED allows Member States discretion to lay down rules on penalties applicable to infringements of the provisions adopted in the implementation of the LED. The chapter also details the legal background and the analysis of Article 57 LED. It explains that under the provisions, penalties act as an enforcement mechanism of data protection law. Even if penalties may be imposed on any competent authority under Article 3(7) LED, penalties may be imposed on natural persons, controllers and processors.
Repeal of Framework Decision 2008/977/JHA
Authors: Tosoni Luca
Published: June 2024

This chapter overviews the repeal of Framework Decision 2008/977/JHA as per Article 59 of the EU Law Enforcement Directive (LED). It presents the legal background and analysis of the provisions within Article 59 LED. Article 59 LED serves the dual purpose of establishing the repeal of the legal antecedent of the LED and ensuring the repeal of the FD does not cause problems of interpretation within the EU law's broader system. Additionally, Article 59(1) LED provides for the express repeal of the FD, as a consequence of the adoption of the LED. Meanwhile, Article 59(2) LED ensures the proper continuation and interpretation of pre-existing EU legislation that refers to the FD.
Union legal acts already in force
Authors: Mościbroda Anna
Published: June 2024

This chapter examines the extent of Article 60 of the EU Law Enforcement Directive (LED). It introduces the notion of a grandfathering clause wherein any specific provisions regulating the processing of personal data in the field of judicial cooperation in criminal matters and police cooperation are unaffected by the LED's entry into force. The grandfathering clause of Article 60 LED does not have an equivalent either in the General Data Protection Regulation (GDPR) or the EU Data Protection Regulation (EUDPR). Article 60 LED revolves around provisions which regulate processing between Member States and the access of designated authorities of Member States to information systems established under the Treaties under the Directive. The chapter clarifies which provisions are affected by Article 60 LED.
Transposition
Authors: Milaj Jonida
Published: June 2024

This chapter provides an overview of Article 63 of the EU Law Enforcement Directive (LED). It explains the legal background of Article 63 LED in line with the EU legislation. Article 63(1) LED indicates that the period of transposition allocated to the Member States expires on 6 May 2018. As a result of derogations, the full transposition of all the provisions of the Directive in all the Member States will take some time, but the derogations will be considered as exceptions instead of the general rule. The chapter details the circumstance of failing to transpose the Directive on time as required by Article 63(4) LED.
Entry into force
Authors: Milaj Jonida
Published: June 2024

This chapter details the extent of Article 64 of the EU Law Enforcement Directive (LED). According to Article 64 LED, the LED shall enter into force on the day following its publication in the Official Journal of the European Union. Moreover, the provision primarily follows a general pattern in the European Union (EU). Even though technically the LED entered into force on 5 May 2016, preceding Articles of LED made it clear that the legislator intends for the Directive to enter into force a day later. Additionally, in accordance with the second paragraph of Article 63 LED, automated processing systems were set up on the day of entry into force of the LED.
Council of Europe
Authors: De Hert Paul , Sajfert Juraj
Published: June 2024

This chapter discusses the role of the Council of Europe in data protection law, which is a set of legal provisions anchored in many global, regional, and national hard law or soft law texts. It begins by describing the main features of the Council of Europe’s Convention for the Protection of Individuals with regard to automatic processing of personal data, known as the Convention 108. Convention 108 laid down basic principles of data protection, which remained cornerstones of European data protection law until the present day. The chapter then compares its principles and provisions on data subject rights with the EU Law Enforcement Directive (LED). It also considers the rules on personal data transfers and on supervisory authorities. Finally, the chapter analyses a series of Council of Europe soft law instruments. These include the 1987 Council of Europe Police Recommendation; the 1992 Council of Europe Recommendation on the use of the DNA analysis by the criminal justice system; the 2018 Practical Guide on the use of personal data by police; and the 2001 Council of Europe Cybercrime (Budapest Convention).
Contemporary Diplomatic Challenges
Authors: MacMillan Margaret , Mitter Rana , Roberts Ivor
Published: June 2024

This chapter explores contemporary diplomatic challenges across the world. It starts with the future of diplomacy. It explains that diplomats will have to gain knowledge and understanding of the different nation and their respective cultures to best advise their governments and explain their nations and peoples to others. Even though diplomats of the last two centuries tended to be products of a classical or liberal arts education, diplomats of today must be familiar with economics while also being literate enough to understand crucial issues in the matters they are negotiating or advising their governments on. The chapter then looks into the challenges concerning climate change, non-proliferation, migration, the internet, and the pandemic.
Privileges and Immunities of Diplomatic Missions
Authors: Denza Eileen
Published: June 2024

This chapter details the privileges and immunities of diplomatic missions. It references the provisions of 1961 Vienna Convention on Diplomatic Relations to elaborate on the privileges and immunities. Immunities are essential to the conduct of relations between independent sovereign States and are given on a basis of reciprocity. The chapter discusses the right to give asylum in diplomatic missions to refugees from the authorities of the receiving State, which refers to the lack of agreement among States on the circumstances to exercise the right. It also looks into the inviolability of mission archives, freedom of communication, and freedom of movement.
Consular Access and Protection
Authors: Denza and Eileen , Wickremasinghe Chanaka
Published: June 2024

This chapter looks into the key concepts of consular access and protection. It highlights protecting in the receiving State the interests of the sending State and its nationals as the first and most important of consular functions. Additionally, a consul may take steps to safeguard the rights or interests of a national who is not present in the territory of the receiving State. The chapter elaborates on the general aspects of protection and group protection. It then notes Article 36.1(c) of the Vienna Consular Convention provides substance to the right of consular access, which is absolute in the sense that it cannot be made conditional on assistance in relevant criminal investigations.
Special Missions
Authors: Foakes Joanne
Published: June 2024

This chapter examines special missions, wherein States often send representatives abroad to conduct negotiations and have dealings with other States for various temporary purposes. Many States consider that the New York Convention goes too far in certain respects in equating the position of a person on a special mission with that of a diplomat based on a permanent mission. Thus, the general consensus consists of a crucial prerequisite of the consent of the receiving State. The chapter mentions the importance of international rules correlated to special missions. It considers the issue concerning the functional immunity of foreign state officials with regard to certain international crimes.
The United Nations I—The Charter and Its Operation
Authors: Parry Emyr Jones
Published: June 2024

This chapter focuses on the charter and operation of the United Nations. The United Nations system touches most aspects of global economic activity and international peace and security, while simultaneously representing principal multilateral bodies. The chapter then elaborates on the primary responsibility of the Security Council for the maintenance of international peace and security, which considers the growing threat of terrorism. Meanwhile, the United Nations Charter devotes three chapters to the subject of dependent territories that involves the International Trusteeship System and the Trusteeship Council. The chapter then details the structure and membership of the general assembly and economic and social council.
The European Union II—External Relations
Authors: Berman Paul
Published: June 2024

This chapter looks into the external relations of the European Union. It examines the diplomatic practice of States in conducting their relations with other States either bilaterally or within a multilateral framework. The European Union holds relations with third States and organizations as an actor in its own right using the legal powers and institutional framework. The chapter discusses the institutional framework of the European Council and the conclusion of international agreements with third States and international organizations. It explores the European Union's participation in (other) international organizations that vary upon the body’s membership rules, competence, and, in some cases, the readiness within the Union itself to seek participation.
Public and Digital Diplomacy
Authors: Fletcher Tom
Published: June 2024

This chapter provides an overview of the key concepts of public and digital diplomacy. It starts with the acknowledgment of public diplomacy as a major weapon in a diplomat's armoury. Since the digital revolution has changed the world faster than any previous technology, diplomacy is once more having to reconnect to new sources of power, especially when digital media are also increasingly important resources for those responding to humanitarian crises. Thus, the role of diplomats is being transformed faster than at any point in history. The chapter elaborates on the four phases of digital diplomacy while also considering the boundaries between secrecy and privacy.
Treaties and Other International Instruments III—Pact, Act, Modus Vivendi, Declaration, Exchange of Notes, Memorandum of Understanding
Authors: Berman Frank , Bjorge Eirik
Published: June 2024

This chapter defines the typology of treaties. The term ‘pact’ derives a long and respectable colloquial usage to signify an agreement of any kind between States, while simultaneously denoting an especially solemn international agreement. Meanwhile, Oppenheim’s International Law places declarations under a general heading of ‘unilateral acts’ due to any legal significance they may possess being independent of the response of an addressee. The chapter also details the usage of the notion of acts, modus vivendi, and memorandum of understanding. The chapter explains that a treaty concluded in the form of an Exchange of Notes or letters is a frequently used device for formally recording the agreement of two governments on all kinds of transactions.
Treaties and Other International Instruments V—Interpretation, Reservations, Termination, the Effect of War, Ius Cogens
Authors: Berman Frank , Bjorge Eirik
Published: June 2024

This chapter tackles several concepts of treaties and other international instruments. It cites that certain miscellaneous aspects of the law of treaties are important all the same and controversial simultaneously, such as treaty interpretation. Treaty compliance and the effective implementation of treaty commitments are critically dependent on being able to ascertain reliably what the treaty means in its application to particular sets of circumstances. The chapter discusses the distinction of interpretation, reservations, termination, and effect of war. It elaborates on the notion of ius cogens in international advocacy while mentioning that the Vienna Convention on the Law of Treaties is one of the few leading instruments to deal with the subject explicitly.
Prevention and Management of Conflict and Settlement of Disputes
Authors: Parry Emyr Jones
Published: June 2024

This chapter examines the prevention and management of conflict and settlement of disputes. It discusses the nature of conflict, which occupies a spectrum and remains potent with armed non-State actors a frequent characteristic. Negotiating an end to conflict requires a comprehensive approach starting with a cessation of hostilities and some form of agreement between the belligerent parties. The chapter acknowledges the difficulty of peacebuilding after conflict and the role of the United Nations Security Council against a threat to international peace and security. It also elaborates on the negotiations facilitated by third parties, citing how the negotiations between disagreeing parties may be encouraged by other governments or organizations.
Courts and Arbitral Tribunals
Authors: Wilmshurst Elizabeth
Published: June 2024

This chapter discusses the International Court of Justice (ICJ) and other binding means of dispute settlement in correlation with courts and arbitral tribunals. It explains that ICJ was established by the United Nations Charter as a forum for settling international disputes to replace the Permanent Court of International Justice. Moreover, arbitration between or among States is a common means of resolving disputes with decisions binding on the parties. The chapter also cites that 35.34. Arbitration is a frequent method of resolving investment disputes between two States or a company investing outside its host State. It details the International Tribunal for the Law of the Sea, the World Trade Organization dispute settlement system, and various arbitral tribunals.
Advice to Diplomats
Authors: Roberts Ivor , Parry Emyr Jones
Published: June 2024

This chapter offers advice to diplomats. Some of the advice includes diplomats being on guard against the notion that their post is the centre of international politics while also aiming to understand how their work contributes to national objectives. Moreover, diplomats must be conscious of the responsibility of representing their country. The chapter discusses the concept of Nicholson test and multilateral diplomacy before elaborating on the problems of protocol and precedence. It also considers internal differences in diplomacy, citing that diplomats must still try to enjoy the experience and privilege of representing their country and appreciate the opportunity to study and understand the host country.
Engagement of Domestic Courts with International Law
Authors: Nollkaemper André , Shany Yuval , Tzanakopoulos Antonios
Published: June 2024

The chapter is the general introduction to the volume. It sets out the background against which the engagement of domestic courts with international law should be understood and introduces the Report of the International Law Association Study Group that forms the book’s basis. It argues that the main differences between domestic and international court judges in their engagement with international norms appear to be sociological and political. Against a background where formal legal structures have little explanatory value in understanding how particular domestic courts, and individual domestic judges, go about in interpreting and applying international law, and where the actual engagement of courts and judges with international norms is determined by wider considerations, the chapter elaborates on the volume’s aim, which is to identify and articulate the principles that underlie domestic court engagement with international law.
Engagement of Domestic Courts with International Law in Anglophone Africa
Authors: Killander Magnus
Published: June 2024

The chapter discusses the engagement of domestic courts with international law in 18 Anglophone African states. With independence, these states inherited a political system largely based on the British model, though with written constitutions. On the relationship between international and domestic law, African Anglophone constitutions were for long quiet, while judicial practice, in the few cases the issue arose, applied the English approach of dualism with regard to treaties and monism in relation to customary international law. The chapter sets out the constitutional or legislative framework of these states dealing with the role of international law in the domestic system, where such exists, and provides examples of judicial practice. What an analysis of the case law illustrates is that in the absence of a clear constitutional framework, the individual judge is the most important determinant in how international law is used, while how litigants present their cases is also crucial.
Engagement of South African Domestic Courts with International Law
Authors: Woolaver Hannah
Published: June 2024

South African courts have, since the adoption of the 1996 Constitution, engaged widely with international law in key cases. In the course of this engagement, the Constitutional Court and other domestic South African courts have employed techniques both to enable the harmonization of domestic and international law, and to justify the non-application of international law in domestic law. The chapter shows that the use of consistent interpretation as a technique of alignment has been particularly significant. It also identifies three different techniques used by courts leading to avoidance of international law. Overall, however, South African courts in the new constitutional era have adopted a posture of alignment with international law rather than one that seeks to avoid the application, or contest the content, of rules of international law.
Engagement of Israel’s Supreme Court with International Law
Authors: Schwartz Osnat Grady
Published: June 2024

As Israel does not have a comprehensive constitution or any specific constitutional arrangements defining the relationship between domestic and international law, the relationship has been crafted by the Supreme Court. In the State’s formative years, the Court followed the common law tradition, adopting a monist approach towards customary international law, and a dualist approach regarding treaties. Gradually, the Court showed greater openness towards international law, liberally applying alignment techniques to give effect to international obligations, including treaties that had not been transformed into Israeli law, and to avoid overriding incorporated international law where it would conflict with domestic legislation. The chapter discusses these developments focusing on the engagement of the Court with international humanitarian and human rights law. Overall, a combination of what branch of international law is at stake in a given case and the judge’s individual preferences dictate the latter’s strategic choices in engaging with international law.
Engagement of Argentina’s Supreme Court with International Law
Authors: Pinto Mónica , Maisley Nahuel
Published: June 2024

The chapter maps the engagement of the Argentinean Supreme Court with international law. It divides the Court’s caselaw into three eras. First, an ‘era of affirmative avoidance’ (1853–1992), characterized by a restrictive approach, blunting the incorporation of international law into the domestic legal order. Second, an ‘era of transition’ (1992–1994), in which the Court lifted many of the restrictions it had placed upon the incorporation of international law. And, third, an ‘era of overriding alignment’ (1994–onwards), in which the Court, despite some initial contradictions and dubitative rulings, has considered that international law, the decisions of international courts and tribunals, and even the recommendations of other international institutions must be taken into account when deciding domestic cases. The chapter finally comments on a series of recent decisions which may either constitute a new, contestatory era, or simply a temporary pause in the Court’s strong alignment with the international legal order.
Engagement of Canadian Courts with International Law
Authors: Ert Gib van
Published: June 2024

The chapter provides an account of how public international legal norms are received into the Canadian legal system, with a focus on jurisprudence from the Supreme Court of Canada. The constitutional and interpretive rules governing the reception of international law into the Canadian legal system tend to favour, and even promote, the alignment of Canada’s domestic laws with its international obligations. The key reception rules are judicial notice of international law, the treaty implementation requirement, the incorporation of customary international law by the common law, and the interpretive presumption of conformity with international law. The chapter reviews legislative and judicial alignment techniques, as well as avoidance practices. As a whole, the Canadian reception system favours alignment with international law over avoidance, though judicial avoidance is facilitated by Canada’s dualist approach to treaties.
Engagement of Belgian Courts with International Law
Authors: Dopagne Frédéric
Published: June 2024

The Constitution of Belgium contains few provisions relating to the status of international or European Union law in the Belgian legal system. Therefore, several issues regarding the role of international law in the domestic system have been determined by Belgian courts. From their caselaw, it is difficult to discern a general principled approach in their engagement with international law. However, the attitude that the Belgian judge seems to adopt most of the time, is alignment with international law, with the exception of a recent judgment of the Court of Cassation limiting the scope of the State’s tort liability for a breach of international law. No genuine and systematic contestation mechanisms can be observed. Moreover, while some avoidance techniques can be pinpointed, they prove relatively ‘soft’ in comparison to the doctrines of non-justiciability that exist in other jurisdictions.
Engagement of Swiss Courts with International Law
Authors: Belser Eva Maria , Oleschak-Pillai Rekha
Published: June 2024

Judicial engagement with international law in Switzerland is much debated, both in law and politics. The monist Swiss system easily receives international norms, yet the Federal Supreme Court’s strategies in resolving tensions between international and domestic norms are ambiguous and regularly contested, particularly when domestic norms adopted on the basis of direct democracy clash with internationally (and nationally) guaranteed human rights. The chapter outlines the various strategies Swiss authorities adopt to avoid judicial engagement with international law, as well as strategies used by courts when engagement is inevitable. These include various kinds of alignment or avoidance, making judicial outcomes often unpredictable. Engaging with international law, especially the European Convention on Human Rights, has enabled the Federal Supreme Court to review federal acts, practising ‘backdoor constitutional review’ in human rights cases; however, domestic courts have not used their power consistently, and in some instances have failed to uphold their counter-majoritarian role.
Trade in Goods
Authors: Ricardo Ramírez-Hernández
Published: June 2024

As international trade became more sophisticated, the ‘traditional’ trade in goods topics seemed to be entering an extinction phase and be substituted by other forms of trade regulation, such as technical barriers or sanitary measures. However, in recent years and for different reasons, many of them reclaimed their relevance. This chapter also discusses an essential tool for the operation of trade in goods, which is tariff classification, as well as an often overlooked but fundamental issue in trade in goods regulation, which are the rules of origin. Global value chain operations could not be conceived without rules of origin. Finally, the COVID 19 pandemic revealed how vulnerable international trade could be to import and export restrictions, such as quotas or licences, and how important trade facilitation could be to bolster trade and even to save lives.
Investment Law’s Monstrous Reform
Authors: Rodney Neufeld
Published: June 2024

Bilateral investment treaties (BITs) and investment chapters in FTAs promote investment and enhance investor protection through substantive obligations, including national treatment, MFN treatment, fair and equitable treatment (FET), and the prohibition against expropriation. These obligations are often enforceable directly by investors through investor-State dispute settlement (ISDS). Despite the loud criticism of investment law, and more particularly, ISDS, States have not jettisoned the obligations or ISDS. As a review of State practice shows, new treaties contain important reform elements that clarify the meaning of vague concepts, including treatment ‘in like circumstances’, FET, and indirect expropriation. To a lesser extent, States are adopting reform elements that limit or even prevent access to ISDS. At the same time, States are eagerly pursuing procedural reform in ICSID and UNCITRAL. It remains to be seen whether these efforts will result in a new court or appellate mechanism, or whether they will contribute to the multilateralization of investment law, but even without it, the previously fragmented web of BITs are slowly being replaced by investment chapters in regional FTAs with much clearer obligations.
Treaties
Authors: Gardiner Richard
Published: June 2024

This book describes the role of treaties as an element of international law. Treaties comprise the whole range of international agreements that are governed by international law. The book explains what treaties are, how they are made, and how they are interpreted and implemented both internationally and within national legal systems. In doing this, the book includes an account of the main features of the law of treaties and describes how treaties contribute to the formation and codification of international law. It outlines how treaties are the foundation of international organizations which, in turn, through their constitutive treaties and those treaties which they develop make extensive contributions to international law. Thus the book shows that treaties, and the legal regimes which they create, now constitute the pre-eminent component of international law.
Introduction
Authors: Gardiner Richard
Published: June 2024

The introduction explains that the main aim of the book is to show the role of treaties as a key element of modern international law and, in doing so, to provide an overview of the law of treaties. Codification of general international law and development of specialist areas have largely been through treaties. International courts and tribunals, and international organizations exist and function because of treaties. Treaties also have increasing effect in national systems of law. Negotiating and bringing treaties into force, and implementing them internationally and in national legal systems require understanding their nature, how they are interpreted, and how they are given effect through relations between states. All who come into contact with international law need to know about treaties. The introduction identifies the subject of each chapter of the book.
Treaties in Modern Times
Authors: Gardiner Richard
Published: June 2024

This chapter provides an introduction to treaties and gives an account of the general features of treaties, including the extent to which the term embraces all international agreements between states and governed by international law. It explains their legal effect in creating legally binding treaty relations between states, and extends to those treaties involving other international legal persons in the form of international organizations. In addition to definitions and illustrations of key terms, the chapter includes matters of essential knowledge for lawyers such as how to identify documents as treaties by reference to their components and content, how to distinguish them from mere political commitments, and where to locate authentic texts of treaties.
Ensuring Treaties Work
Authors: Gardiner Richard
Published: June 2024

This chapter concerns supervision, responses to breach, and enforcement of treaties. Reciprocity and diplomatic action provide the traditional means for ensuring implementation, but increasingly international institutions have a role in this. Such institutions may include courts and tribunals having jurisdiction over particular treaties or classes of treaty. Ultimately, states may also enforce treaties by their suspension in whole or part, by other measures in response, or by termination of a treaty. While negotiation has been the principal means of dealing with perceived breaches of a treaty, resort to arbitration or judicial settlement of disputes has become increasingly common, with use of proportionate measures in response to a breach, such as denial of benefits under the treaty or withholding other rights, as a further resort.
Artificial Intelligence and the Right to Liberty and Security
Authors: Valentina Golunova
Published: June 2024

The right to liberty and security stipulates that no one shall be subjected to an unlawful or arbitrary deprivation of their physical freedom. The exercise of this essential human right can be severely affected by artificial intelligence (AI) applications used in law enforcement and criminal justice. Predictive algorithms can assist public authorities in identifying, apprehending, and bringing perpetrators to justice. While these applications can be effective for addressing national security and public safety concerns, many of them are opaque and often produce inaccurate or biased outcomes. As a result, the use of AI-driven technologies could increase the risk of unlawful arrests and detentions. This chapter sheds light on different types of AI applications which challenge effective protection of the right to liberty and security. It also reflects on legal solutions which could help safeguard the freedom as well as physical and mental integrity of all individuals in the AI-driven society.