bluuebunny/crossref_metadata_2025 huggingface dataset:
Scope of Operator’s Duties/Authority
Authors: Timothy A
Published: August 2024

This chapter considers the scope of the authority of the person which is appointed to act as the operator in the performance of the joint venture agreement. This definition will be important to the operator and to the parties (so that the operator and the parties have a clear understanding of the boundaries of the operator’s mandate to act), and also to any third parties who contract with the operator (given particularly the ability of the operator to bind the parties to a contract with a third party if the operator is acting as the agent of the parties). Issues of whether the operator has the necessary authority to act, and whether the operator might have acted ultra vires, will be of concern to third parties dealing with the operator. This chapter considers the scope of the operator’s authority to act in the performance of the joint venture agreement. The associated issue of how operations under the joint venture agreement are properly authorized in the first place is considered in Chapter 6. The wider issue of scope, which relates to the intended business purposes of the joint venture agreement, is considered in Chapter 4.
Definitions of Investment in Investment Laws
Authors: Petsche Markus
Published: August 2024

This chapter provides a general overview and analysis of definitions of ‘investment’ found in investment laws, with particular focus on how those definitions differ from treaty definitions. Sections II, III, and IV discuss, respectively, asset-based, enterprise-based, and activity/project-based definitions of ‘investment’. Section V explores the common requirement of a contribution of ‘capital’. Section VI analyses the requirement of a contribution to the host State’s economic development, a requirement that is almost entirely absent from treaty definitions but is contained in a number of investment laws. Section VII offers a few observations on the rather limited arbitral case law.Please suggest 5—10 keywords that can be used for describing the content of the chapter.
The Status of International Financial Institutions under International Law
Authors: Bradlow Daniel D
Published: August 2024

Chapter 4 evaluates the international legal status of the International Monetary Fund (IMF), and the institutions in the World Bank Group (WBG). For the purposes of the chapter, the most relevant members of the WBG are the three institutions that finance development projects in their member states. These are the International Bank for Reconstruction and Development (IBRD), the International Development Association (IDA), and the International Finance Corporation (IFC). The chapter begins by discussing the IMF and the WBG (collectively the international financial institutions) as subjects of international law. It then focuses on the privileges and immunities of the IFIs as actors under international law. International law, pursuant to Article 38 of the Statute of the International Court of Justice, can be understood to consist of any treaties to which the organizations are signatories, the principles of customary international law, and general principles of law.
The Right to Non-Discrimination
Authors: Besson Samantha , Kleber Eleonor
Published: August 2024

This section is about Article 2 of the UN Convention on the Rights of the Child dealing with The Right to Non-Discrimination.
The Rights to Birth Registration, a Name, Nationality, and to Know and Be Cared for by Parents
Authors: Tobin John , Seow Florence
Published: August 2024

This section is about Article 7 of the UN Convention on the Rights of the Child dealing with The Rights to Birth Registration, a Name, Nationality, and to Know and Be Cared for by Parents.
The Mass Media and Children: Diversity of Sources, Quality of Content, and Protection against Harm
Authors: Tobin John , Handsley Elizabeth
Published: August 2024

This section is about Article 17 of the UN Convention on the Rights of the Child dealing with The Mass Media and Children: Diversity of Sources, Quality of Content, and Protection against Harm.
Adoption
Authors: Alston Philip , Cantwell Nigel , Tobin John
Published: August 2024

This section is about Article 21 of the UN Convention on the Rights of the Child dealing with Adoption.
Children with Disabilities
Authors: Byrne Bronagh
Published: August 2024

This section is about Article 23 of the UN Convention on the Rights of the Child dealing with Children with Disabilities.
The Rights of Children in Armed Conflict
Authors: Drumbl Mark , Tobin John
Published: August 2024

This section is about Article 38 of the UN Convention on the Rights of the Child dealing with The Rights of Children in Armed Conflict.
The Protection of Intellectual Property Rights Under International Investment Law
Authors: Klopschinski Simon , Gibson Christopher S , Grosse Ruse-Khan Henning
Published: August 2024

Foreign direct investment (FDI) has played an increasingly significant role in world economic activity and development. During this time, another powerful trend has been transforming an important part of modern economies: they are becoming predominantly 'conceptual' and shifting the emphasis in asset valuation from physical to intellectual property (IP). A similar change can be observed in FDI: they are reflecting an increasing concentration of intellectual capital invested in knowledge goods protected by intellectual property rights. Thus, IP rights have never been more economically and politically important or controversial than they are today. There have long been international treaties that protect IP, but in recent years other international treaties have come into being that protect IP rights along with other property rights. These treaties include various international investment agreements (IIAs), which regard IP rights as a protected investment. This book analyses the standards of treatment and protection enshrined in IIAs for IP rights, with reference to topics such as the interaction of international investment law with IP-specific treaties and public policies; investor–state dispute settlement; IP-related investment cases; intellectual property as an investment; relative standards of treatment (such as national treatment and most-favoured-nation treatment); absolute standards of treatment (such as fair and equitable treatment and full protection and security); and expropriation. The book not only comprehensively describes how intellectual property rights are protected in the context of international investment law, but also attempts to fill gaps and address questions so far left open by the emerging case law addressing the IP–investment interface.
Expropriation
Authors: Klopschinski Simon , Gibson Christopher S , Grosse Ruse-Khan Henning
Published: August 2024

This chapter studies a third principal standard of treatment for foreign investors: protection from unlawful expropriation. An expropriation constitutes an interference with the existing proprietary position of a foreign investor. Protection against expropriation is a core guaranty of international investment law. The chapter then analyses the standards for direct and indirect expropriation in relation to intellectual property (IP) rights. It reviews the basic principles of expropriation under international investment law, treaty practice concerning expropriation, and investor–state dispute settlement (ISDS) cases where claims of expropriation were asserted for IP-based investments. The chapter also examines compulsory licences with respect to patents, although an investment case has not yet arisen. Not least in the context of the COVID-19 pandemic, the question arises whether compulsory licences under patents constitute an expropriation within the meaning of international investment agreement (IIA) and what role Article 31 of the TRIPS Agreement plays in this context. In addition, ISDS disputes had to address to what extent anti-smoking legislation constitutes an indirect expropriate of tobacco companies' trademarks.
Neutrality, Non-Belligerency, and the Prohibition of the Use of Force
Authors: Upcher James
Published: August 2024

This chapter discusses how the prohibition of the threat or use of force in international law challenges neutrality. The prohibition on the threat or use of force in international law throws into doubt the entire edifice on which the law of neutrality is built: the distinction between a state of belligerency and a state of neutrality, and the legality (or extra-legality) of war. In the past, at least in the nineteenth century, the formalism of international law distinguished sharply between different statuses and States were free to move between these categories. If the unrestricted right to go to war was the foundation of neutrality, and if that right has now been abolished, it may signal vast changes in the creation of neutral status in contemporary international law. One prominent view is that those changes have been very profound, and have altered the way in which neutrality is invoked. That view suggests that neutrality has been transformed into an optional legal status that States are free to take up or decline as they see fit, subject to those rules being displaced by the UN Charter. Those States that choose not to take up the status of neutrality upon an armed conflict breaking out occupy a position of non-belligerency; and they are free, in that status, to deviate from the substantive rules of neutrality.
Immunity of Property, Funds, and Assets (Article III Section 4 Specialized Agencies Convention)
Authors: Burci Gian Luca
Published: August 2024

This chapter discusses Article III Section 4 of the Specialized Agencies Convention, which sets forth the immunity of specialized agencies from legal process in broad and absolute terms. Unlike the General Convention, however, the diversity of the Specialized Agencies and their respective constitutive treaties, host agreements, and similar legal instruments have made it difficult to obtain coherent and uniform vision of their legal protection from the exercise of national jurisdiction. In countries that have acceded to it, the Specialized Agencies Convention plays a more or less prominent role, depending on the other applicable legal instruments and the characteristics of the national legal system concerned. The available case law points to a generally complementary or default role for the Specialized Agencies Convention, which is mentioned as the source of the immunity from legal process together with other instruments (as in the Ochani v WHO and Entico v UNESCO cases) or when no other instruments are applicable (as in the United States Lines v WHO case).
Exemptions from Taxes and Customs Duties (Article III Sections 9–10 Specialized Agencies Convention)
Authors: Martha Rutsel Silvestre J
Published: August 2024

This chapter discusses Article III Sections 9–10 of the Specialized Agencies Convention, which sets forth the exemption of the Specialized Agencies from taxes, import regulations/restrictions, and customs duties. The exemption largely corresponds to that accorded to the UN by Art. II Sections 7–8 of the General Convention, and has already been examined in the context of the commentary to the latter sections. Thus, the chapter focuses on particular issues and especially on those that arose in the context of development financing by the Specialised Agencies. Topics covered include exemptions from direct taxes; from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the specialized agencies for their official use; and from duties and prohibitions and restrictions on imports and exports in respect of their publications.
Officials (Article VI Sections 18–23 Specialized Agencies Convention)
Authors: Bandyopadhyay Ronja , Iwata Tomoko
Published: August 2024

This chapter discusses Article VI Sections 18–23 of the Specialized Agencies Convention, which grants privileges and immunities to the officials of the Specialized Agencies in accordance with specified categories, to be determined by each agency. The criteria used to define who is encompassed by the general category of ‘officials’ are devised in quite general terms: except for individuals who are both recruited locally and assigned to hourly rates, the privileges and immunities provided for in Art. VI and VIII are in principle granted to all members of the staff of the Specialized Agencies. This holds true regardless of whether the staff was hired on a continuing, fixed-term, or temporary appointment. Practice among Specialized Agencies varies considerably when it comes to devising the various categories falling under the notion of official. This is demonstrated by the Annexes to the Specialized Agencies Convention and the institutions' constituent instruments, particularly as far as the definition of senior officials (or executive heads) is concerned.
Dispute Settlement (Article VIII Sections 29–30 General Convention)
Authors: Schmalenbach Kirsten
Published: August 2024

This chapter discusses Article VIII Sections 29–30 of the General Convention. The UN is bestowed with legal personality and capacities and consequently bears responsibility for all acts and omissions of its organs and officials attributable to it. Given that jurisdictional immunities prevent legal proceedings from being pursued against the UN before national courts, Art. VIII Section 29 reflects the understanding that these immunities neither exonerate the UN from its duty to meet its responsibilities and obligations nor that the immunities be seen as tantamount to a denial of justice. In other words: The UN is immune from national jurisdiction but not from the substance of the claim. Consequently, Art. VIII Section 29 requires the UN to provide for an appropriate alternative mode of dispute settlement that cushions the adverse effects of its jurisdictional immunity. Art. VIII Section 30 facilitates the peaceful settlement of differences and disputes arising out of the legal status of the UN, its officials, and representatives to the UN within the legal order of member States. Art. VIII Section 30 should be read in two separate parts given that it contains two distinct dispute settlement clauses: the first sentence for inter-State disputes, and the second in conjunction with the third sentence for disputes between the UN and a State party.
Final Article (Final Article Sections 31–36 General Convention)
Authors: Binder Christina
Published: August 2024

This chapter discusses the Final Article, Sections 31–36, of the General Convention, which deals with issues which are usually regulated in the final provisions of a treaty. The Final Article establishes the form of adherence to the General Convention (accession), the Convention's entry into force and related State obligations (Sections 31, 32, and 34). It designates the Secretary-General as depositary of the General Convention and details certain of his duties (Sections 32 and 33). It addresses the duration and possible termination of the General Convention (Section 35) as well as the possible conclusion of supplementary agreements (Section 36). The Final Article's conception reflects the sui generis character of the General Convention. It sets a standard States may accede to by depositing their instrument of accession. Rights and obligations are directed towards the UN as an organization, rather than towards the other treaty parties.
Annex IX—International Telecommunication Union (ITU)
Authors: Bachmayer Peter
Published: August 2024

This chapter discusses Annex IX of the Specialized Agencies Convention, which modifies the standard clauses of the Convention with regard to the International Telecommunication Union (ITU). The first International Telegraph Convention was signed in Paris on 17 May 1865, and the International Telegraph Union (the very first ‘incarnation’ of the ITU) was established to supervise subsequent amendments to the agreement, thus making the ITU the world's oldest international organization. Annex IX stipulates that the standard clauses of the Convention apply without modification to the ITU except for the provisions laid out in Art. IV Section 11 of the Convention. Hence, the ITU does not enjoy the privileges and immunities concerning facilities in respect of communications which the Specialized Agencies are generally granted under the Specialized Agencies Convention. The remainder of the chapter covers the drafting history and key elements of Annex IX.
Introduction
Authors: Rubins Sabahi
Published: August 2024

This introductory chapter provides an overview of investor-state arbitration. The modern law for protection and promotion of foreign investment is codified in a vast network of bilateral and multilateral investment treaties. Under these treaties, foreign entities from a signatory state that have made a qualifying investment in the territory of another signatory state enjoy a range of protections. When an investor feels that its rights under the treaty have been violated, it can directly sue the host state of investment before an international arbitral tribunal. The chapter then explains the importance of foreign investment for capital importers; the protection of investment as a fundamental condition for attracting foreign investment; investment treaties and Investor-State dispute settlement (ISDS) as a key tool in providing such protection; the global backlash against the ISDS; and initiatives to reform the ISDS system.
History and Limitations of the Traditional System for Resolving Investment Disputes
Authors: Rubins Sabahi
Published: August 2024

This chapter discusses the history and limitations of the traditional system for resolving investment disputes. Foreign investors often encounter serious obstacles to obtaining redress in the host country’s courts. These include local bias, state immunity, inefficient judiciaries, and the Calvo Doctrine. As a result of these potential shortcomings, foreign companies frequently look to courts in other countries with a factual connection to the dispute, most often the investor’s domicile. However, they then face an entirely different, but no less challenging, series of obstacles. These include jurisdiction, foreign sovereign immunity, the act of the state doctrine, and choice of law. In addition, foreign investors have at times met with political hostility in response to attempts to recover their investments. Foreign investors historically had little choice in terms of available judicial remedies. A more common and less extreme channel of recourse, and one still occasionally used today, was diplomatic espousal by the investor’s home state.
Governing Law in Investment Disputes
Authors: Rubins Sabahi
Published: August 2024

This chapter addresses the primary sources of substantive law pertinent to investment disputes: rules or contractual terms agreed to by the parties, if any; public international law, including the investment treaties themselves; and the law of the host state, and other relevant rules of national law. Various arbitral rules anticipate an important role for the parties’ agreement over substantive law. Article 42(1) of the ICSID Convention recognizes the principle of party autonomy, mandating that a tribunal shall apply any ‘rules of law’ that the parties have selected. Public international law also plays a major role in investment arbitration. Investment treaties are the main instruments by which states expressly consent to arbitrate and to grant substantive protections to foreign investors. Meanwhile, host state law manifests itself at several levels particularly where the parties to a dispute have selected it as the law governing their contractual relations, or where the relevant investment treaty contemplates a role for it.
Investors
Authors: Rubins Sabahi
Published: August 2024

This chapter covers a range of legal issues relating to the standing of natural and legal persons to bring claims under customary international law, investment treaties, and the ICSID Convention. Determining whether a foreign investor satisfies the nationality requirements of an investment treaty or the ICSID Convention can be a complex exercise, given the myriad investment structures by which corporations and individuals hold assets. In some cases, a company formed in the home state of the investor will have made an investment directly in the host state, giving rise to little debate as to the entity’s standing to bring a claim against the host state. In many other cases, however, the factual circumstances are more intricate. The ultimate contributor of capital may have made its investment through several layers of companies, incorporated in different jurisdictions. Some intervening corporate vehicles may benefit from investment treaties with the host country, whereas others may not.
Non-living Resources on the Continental Shelf Beyond 200 Nautical Miles
Authors: Mossop Joanna
Published: August 2024

This chapter focuses on the exploitation of non-living resources on the continental shelf. Article 82 of the Law of the Sea Convention (LOSC) establishes a process whereby coastal States are required to make payments or contributions in kind through the International Seabed Authority (ISA) when exploitation occurs on the extended continental shelf. This chapter discusses the negotiating history of article 82 and some of the issues that have been raised about how it is to be interpreted. In some cases, States will face a situation where hydrocarbons or minerals are located across a boundary or partly on the continental shelf and partly in the area governed by the ISA. The chapter suggests approaches for dealing with these difficulties. It also suggests that joint development areas should consider how article 82 is to be applied. Finally, the chapter discusses some issues relating to installations and structures on the continental shelf and carbon sequestration.
Overview
Authors: Jarvis Michelle
Published: August 2024

This introductory chapter examines the work of the Office of the Prosecutor (OTP) of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has had to grapple with the challenge of establishing accountability for sexual violence crimes committed during conflicts in the former Yugoslavia. The OTP aims to develop a more accurate and comprehensive understanding of the nature of conflict-related sexual violence and its impact on victims; interpret provisions of international criminal law in a more accurate light that better reflects the experiences of both women and men, girls and boys; and appropriately prioritize accountability for sexual violence crimes amid the other pressing demands of a nascent prosecution office facing significant threats to the successful commencement—let alone completion—of its mandate.
International Concern Regarding Conflict-related Sexual Violence in the Lead-up to the ICTY’s Establishment
Authors: Harbour Grace
Published: August 2024

This chapter explores the emergence of concern over sexual violence in the lead-up to the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY). It situates the issue of sexual violence in context as the Office of the Prosecutor (OTP) began its work-as reports of the violent and often public nature of sexual violence, against both males and females, which were accompanied by brutal executions, destruction of homes, and other mass violence, captured international attention in a way not previously seen, thus influencing the creation and mandate of the ICTY and the OTP. With the voluminous and varied results of several fact-finding investigations in hand, the OTP began its work in pursuing accountability for sexual violence under the intense scrutiny of a horrified international public.
Contextualizing Sexual Violence
Authors: Baig Laurel , Jarvis Michelle , Salgado Elena Martin , Pinzauti Giulia
Published: August 2024

This chapter explores strategies for demonstrating connections between sexual violence and the context in which it is committed through the selection of crimes. Accurately contextualizing sexual violence to draw out these important connections can be a challenge for prosecutors because it forces them to confront misconceptions about these crimes. In particular, the failure to see rape and other similar acts as violent crimes and the assumption that sexual violence is an ‘incidental’ by-product of conflict makes one prone to missing connections between these crimes and their context. In addition, this chapter also summarizes the key insights of the Office of the Prosecutor (OTP) for developing more advanced strategies to prosecute sexual violence as an international crime.
Introduction: The Path to the UN Watercourses Convention and
Beyond
Authors: McCaffrey Stephen C
Published: August 2024

This chapter provides an overview of the path to the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, focusing on the principal factors that influenced and shaped it. It first reviews the work of two non-governmental organizations that helped lay the groundwork for the Convention, the Institute of International Law (IIL) and the International Law Association (ILA), before discussing the UN General Assembly’s resolution referring the international watercourses topic to the International Law Commission (ILC). It then considers the work of the ILC that provided the basis for the Convention’s negotiation and describes the action on the ILC’s Draft Articles in the UN General Assembly, the Convention’s entry into force, implementation, and reception. It also examines the ILC’s work on transboundary groundwater as an extension of its study of shared freshwater resources.
The
Choice of a Framework Convention
Authors: Doumbé-Billé Stéphane , Paccaud Françoise
Published: August 2024

This chapter provides an overview of the framework convention that was adopted for the UN Watercourses Convention. According to the Convention’s preamble, ‘a framework convention will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations’. Before discussing this distinctive nature of a framework convention, the chapter considers the relevance of selecting the framework convention model for regulating the uses of international watercourses. In particular, it describes the framework convention as a harmonization tool and its use in response to a practical need. It then examines whether the framework convention is an appropriate technique for the Convention, focusing on the ambiguity of the nature of the Convention vis-à-vis its content and how the uses of international watercourses promote regionalism over universalism.
The
Relationship between the Convention, Existing and Future Fresh Water
Agreements (Articles 3 and 4)
Authors: Mbengue Makane Moïse , Rudall Jason
Published: August 2024

This chapter examines Article 3, which is concerned with watercourse agreements, and Article 4, which deals with Parties to watercourse agreements. The UN Watercourses Convention does not affect the rights and obligations arising from agreements in force between riparian States, but Parties to the agreements should consider harmonizing such treaties with the Convention. States are not obliged to harmonize existing or future agreements with its principles, but are encouraged to consider doing so. The chapter first reviews the travaux préparatoires to highlight some of the tensions that arose during the negotiation of the treaty before discussing the scope and dimensions of Articles 3 and 4 and how their provisions relate to others in the Convention. It also analyses the provisions, particularly in light of the practice that has built up around them.
The
Obligation not to Cause Significant Harm (Article 7)
Authors: Salman Salman MA
Published: August 2024

This chapter examines Article 7, which is concerned with the obligation of each riparian State not to cause significant harm to the other riparians of the shared watercourse. It first traces the origins of the obligation not to cause significant harm before analysing the work of the different Special Rapporteurs of the International Law Commission (ILC) between 1974 and 1994 and how the UN General Assembly has addressed and resolved the issues regarding Article 7. It also discusses the relationship between the obligation not to cause significant harm and the principle of equitable and reasonable utilization; the distinction between harm affecting the quality, and harm affecting the quantity, of the waters of the shared watercourse; and Article 7’s relations with other articles of the UN Watercourses Convention. The chapter concludes with a critical assessment of the provisions of Article 7.
General Obligation to Cooperate and Regular Exchange of
Data and Information (Articles 8 and 9)
Authors: Leb Christina
Published: August 2024

This chapter discusses the provisions of Articles 8 and 9, which deal with the general obligation to cooperate and the obligation regarding the regular exchange of data and information, respectively. It first considers the preparatory works of the International Law Commission (ILC) leading up to the development of the two obligations before analysing the scope and customary value of Articles 8 and 9, along with the legal nature of the two general principles and their relationship to other provisions of the UN Watercourses Convention. It also examines the role played by the two principles in facilitating the effective realization of other general principles, with a focus on the principle of equitable and reasonable utilization and participation and on the obligation not to cause significant harm. The chapter concludes with a critical assessment of the two obligations.
Notification and Consultation Concerning Planned
Measures (Articles 11–19)
Authors: Sangbana Komlan
Published: August 2024

This chapter focuses on the provisions of Articles 11–19, which comprise Part III of the UN Watercourses Convention. Articles 11–19 deal with the situation where a State (or a person under its jurisdiction) plans measures or activities (including a new use or change in existing use) of an international watercourse that may cause a significant adverse transboundary environmental effect to other States. The chapter considers how the procedural rules of notification and consultation in cases of planned measures have been developed during the travaux préparatoires by reviewing the work of the International Law Commission (ILC) rapporteurs, along with discussions by the ILC and the Sixth Committee of the UN General Assembly. It also examines the relationship between the procedural obligations of notification and consultation and the substantive obligations of the law of international watercourses. It concludes with a critical assessment of Articles 11–19.
Management (Article 24)
Authors: Ziganshina Dinara R
Published: August 2024

This chapter discusses Article 24, which deals with the management of international watercourses—also referred to as administrative arrangements for watercourse systems or joint institutional management. Article 24 of the UN Watercourses Convention recognizes that cooperation between riparian States in integrated water management is essential for attaining the maximum possible benefits from and protection of international watercourses. This provision also encourages riparian States to establish joint management mechanisms. The chapter first reviews the drafting history of Article 24, focusing in particular on how the question of management has been addressed by three Special Rapporteurs of the International Law Commission (ILC). It then analyses the scope and normative content of Article 24 as well as its relationship with other provisions of the Convention, such as duty of cooperation, equitable and reasonable utilization, management and regulation, ‘joint’ measures, environmental protection, and procedural obligations and other provisions related to consultations.
Installations (Article 26)
Authors: Azaria Danae
Published: August 2024

This chapter focuses on Article 26, which requires watercourse State to show due diligence in maintaining and protecting ‘installations, facilities and other works’ related to an international watercourse. In addition, watercourse State Parties to the UN Watercourses Convention are required to enter into consultations with regard to the safe operation and maintenance of such installations, facilities, and other works. The chapter first reviews the travaux préparatoires of the Convention, with emphasis on the work of the International Law Commission (ILC), before discussing the scope and content of the rules enshrined in Article 26 and whether these rules exist as separate rules of customary international law. It then considers Article 26’s relationship with other articles of the Convention and concludes with a critical assessment of the provision.
The
Interplay between the UN Watercourses Convention and the Law on
Transboundary Aquifers (Article 2)
Authors: Sindico Francesco , Movilla Pateiro Laura
Published: August 2024

This chapter examines the relationship between the UN Watercourses Convention and the law on transboundary aquifers (Article 2), focusing in particular on the 2008 Draft Articles on the Law of Transboundary Aquifers (Draft Articles). It first explains how groundwater has been addressed in the works leading to the UN Watercourses Convention and in the UN Watercourses Convention itself, paying attention to the debates before the International Law Commission (ILC) and the ILC Resolution on Confined Groundwater, before discussing the Draft Articles and their relation to the UN Watercourses Convention. The chapter also considers the work of the ILC on shared natural resources and the scope of the Draft Articles, as well as alignment and points of departure between the ILC and the UN Watercourses Convention with regard to the Draft Articles. Finally, it describes a normative package approach to the UN Watercourses Convention and the law of transboundary aquifers.
Jurisdiction in Contentious Cases (I)
Authors: Thirlway Hugh
Published: August 2024

This chapter describes international jurisdiction in personam and jurisdiction in rem — jurisdiction in relation to a party or potential or alleged party to a dispute, and jurisdiction over the dispute itself. International jurisdiction in rem raises issues of a more general nature than jurisdiction in personam , and is examined first. It is after all with regard to jurisdiction in rem that the basic principle of international judicial jurisdiction operates most directly. The chapter then turns to a discussion of consent and the principle of compétence de la competence. Moreover, the application of the consent principle is further complicated as a result of the fact that the Court is a permanent institution. Jurisdiction is a function of the will of the body of States parties to the Charter and Statute, not of the will of the specific parties to a given dispute.
Jurisdiction in Advisory Proceedings
Authors: Thirlway Hugh
Published: August 2024

This chapter examines the Court’s jurisdiction in advisory proceedings. After a brief historical background, the chapter shows how jurisdictional issues in the context of requests for advisory opinion differ from those arising in contentious cases discussed in the previous two chapters. Hence, the chapter examines the right to request and opinion and the limits thereof. The power to request advisory opinions from the Court has from the outset been reserved for international bodies: in relation to the Permanent Court of International Justice (PCIJ), for the Council of the League and the Assembly, and in the post-war era primarily for the United Nations Security Council and General Assembly. The chapter also looks into the nature of the ‘legal question’ in advisory procedures, and presents the Court’s discretion to decline to give an advisory opinion.
The Procedure in a Contentious Case
Authors: Thirlway Hugh
Published: August 2024

This chapter describes how the proceedings in contentious cases are set in motion. This can be done in two ways: if the parties have concluded an agreement ( compromise or special agreement) to bring the dispute before the Court, the case begins with the notification of this to the Court. If not, one State may file an application instituting proceedings against another State, and the Registrar communicates this to the State so named. The chapter further explores the minutiae of instituting these proceedings — the languages used, notifications, counterclaims, as well as written and oral proceedings. It also briefly discusses the submission of evidence into Court, as well as the public nature of the proceedings. The final section of this chapter is concerned with cases in which proceedings are concluded with no judgment at all — discontinuance.
Foundations for the Paris Agreement
Authors: Depledge Joanna , Higham Andrew
Published: August 2024

This chapter provides the basis for an assessment of the Paris Agreement, and the prospects for its implementation and future strengthening. The Paris Agreement builds on a rich and complex body of institutions, rules, and procedures, which have evolved over 25 years to make up what is known as the UN climate regime. The foundations of this regime comprise the 1992 UNFCCC and the 1997 Kyoto Protocol. This chapter focuses on the substance of the climate change regime, sketching its main features as they stood on the eve of the Paris Conference. It also provides a graphical overview of key issues under the climate change regime, as well as the institutional structure of the regime.
Legal Form of the Paris Agreement and Nature of Its Obligations
Authors: Bodle Ralph , Oberthür Sebastian
Published: August 2024

This chapter addresses the legal aspects of the Paris Outcome and its particular obligations. It emphasises the importance of distinguishing between the legal form and structure of the Paris Agreement as a whole and the specific content of its individual provisions and elements. The Paris Agreement is after all an international treaty at the core of a regime that includes other elements with different legal status. Hence this chapter first analyses the legal structure of the overall Paris Outcome in terms of the legal status of the different texts, how they are linked, and how they together form the new climate regime. The chapter then looks at the structure of the Paris Agreement's content, i.e. how its individual provisions work together. Finally, it provides a bird's eye view of the legal nature of individual sections and provisions, and concludes with some further insights.
Guiding Principles and General Obligation (Article 2.2 and Article 3)
Authors: Rajamani Lavanya
Published: August 2024

This chapter addresses the guiding principles of the Paris Agreement, in particular the principle identified in Article 2.2; namely, equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances (CBDRRC-NC). It also discusses the complementary general obligation crafted in Article 3 of the Paris Agreement that applies across mitigation, adaptation, transparency, and support. The chapter also looks at how equity and the principle of common but differentiated responsibilities and respective capabilities (CBDRRC), long a contested issue within the climate regime, is eventually articulated and operationalized in the Paris Agreement. This resolution — in particular in relation to how the principle would be treated and where it would be placed — was also expected to speed up negotiations on other issues. And it did, in the end.
Conserving and Enhancing Sinks and Reservoirs of Greenhouse Gases, including Forests (Article 5)
Authors: La Viña Antonio G M , de Leon Alaya
Published: August 2024

This chapter examines Article 5, which has been referred to as a ‘standalone’ article on forests, although it also points to sinks and reservoirs more generally. Article 5 operationalizes the inclusion of GHG sinks and reservoirs in the scope of the Paris Agreement. The agriculture, forestry, and other land use sectors (AFOLU) comprise about 24% of anthropogenic GHG emissions globally. The sector is unique, however, in that AFOLU activities can act as both sources and sinks of emissions. Given the science and the negotiation history surrounding forests and land use, this chapter builds on the context within which the inclusion of GHG sinks and reservoirs in the Paris Agreement resides.
Technology Development and Transfer (Article 10)
Authors: de Coninck Heleen , Sagar Ambuj
Published: August 2024

This chapter discusses how Article 10 in the Paris Agreement aims to advance technology development and transfer (TD&T) to help developing country Parties improve resilience to climate change and reduce greenhouse gas (GHG) emissions. The provisions in Decision 1/CP.21 (paragraphs 66-71) further support these goals. Broadly, Article 10 of the Paris Agreement and the respective decisions comprise a mix of actions that are fairly concrete and detailed. The actions are necessarily limited in scope, but this can be seen as consistent with the overall approach in the climate arena where it is increasingly understood — and hoped — that much of the action will be outside the formal UNFCCC arena. This chapter puts the current technology-based decisions in the context of the history of TD&T in the UNFCCC, reviews and interprets the individual Articles, assesses opportunities and challenges for implementation, and provides an outlook on TD&T.
Transparency (Article 13)
Authors: Dagnet Yamide , Levin Kelly
Published: August 2024

This chapter reviews the requirements of transparency under Article 13 of the Paris Agreement. These requirements are vital for building international trust and confidence that action is taking place and assessing how to facilitate further action and support for these actions. Under this Article, countries are required to report on progress on reducing GHG emissions and building climate resilience, as well as on the support they provide or receive. Article 13 lays out general principles for the transparency framework and a direction of travel for: enhancing the way countries share information on progress made to mitigate, adapt, provide or receive finance, advance technology development and transfer, and strengthen capacity-building; and the process for the subsequent review and consideration of such information. However, the detailed modalities, procedures, and guidelines for the enhanced transparency framework remain to be developed.
Global Stocktake (Article 14)
Authors: Friedrich Jürgen
Published: August 2024

This chapter takes a look at the Global Stocktake (GST), which links individual planning processes to the objective of the Paris Agreement and its collective goals. The GST is established in Article 14 of the Agreement, in order to dynamically enhance individual ambition to collective goals. It aims to facilitate enhancement of ambition through three main functions, helping Parties to: understand how far they have collectively come in achieving their goals, realize what is still required collectively to reach them, and be informed about possible options on how to enhance their actions both nationally and internationally and thereby hopefully be motivated to do more. In this manner, the GST can be compared to the engine of the Agreement, which is expected to drive the political momentum towards ambition and thus ensure dynamism. This dynamism in turn is a precondition for a durable Agreement.
Facilitating Implementation and Promoting Compliance (Article 15)
Authors: Dagnet Yamide , Northrop Eliza
Published: August 2024

This chapter describes how Article 15 of the Paris Agreement develops an effective mechanism to facilitate implementation and promote compliance. This mechanism consists of an expert-based committee, and the chapter discusses the duties and provisions particular to it. The inclusion of such a mechanism in a multilateral environmental agreement (MEA) like the Paris Agreement fulfils important functions. In particular, it can enhance implementation and support greater cooperation by: contributing to and maintaining trust among Parties, addressing capacity problems and clarifying ambiguities, and preventing ‘freeriding’ by promoting compliance with agreed obligations or norms. Furthermore, by including this mechanism the Parties have signalled the seriousness with which they intend to implement their obligations under the Agreement.
Institutional Arrangements and Final Clauses (Articles 16–29)
Authors: Voigt Christina
Published: August 2024

This chapter details the institutional arrangements (Articles 16–19) and final clauses (Articles 20–29) of the Paris Agreement. These Articles are the most direct indication of Parties' intention of the Agreement to be a treaty under international law within the meaning of the Vienna Convention on the Law of Treaties (VCLT). The provisions on institutional arrangements and the final clauses allow for the operation of the Agreement and facilitate implementation by the Parties and the Depositary. Institutional arrangements concern the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) in Article 16, as well as other bodies listed in the succeeding Articles. The final clauses of the Paris Agreement contain provisions regulating procedural aspects of the treaty operation.
Practitioners' Guide to Human Rights Law in Armed Conflict
Authors: Murray Daragh
Published: August 2024

Although the relationship between international human rights law and the law of armed conflict has been the subject of significant recent academic discussion, there is a lack of comprehensive guidance in identifying the law applicable to specific situations faced by military forces. Providing guidance for armed forces and practitioners on the detailed application of international human rights law during armed conflict, this book fills that gap. Part I details foundational information relating to international human rights law and human rights institutions, the types of operations that States’ armed forces engage in, and how the law of armed conflict and international human rights law apply to regulate different situations. Part II provides practical guidance as to the legal regulation of specific situations, including discussion on the conduct of hostilities, detention operations, humanitarian assistance, cyber operations, and investigations.
Weapons
Authors: Murray Daragh
Published: August 2024

This chapter discusses the regulation of weapons used during both ‘active hostilities’ and ‘security operations’. The law of armed conflict prohibits weapons of a nature to cause superfluous injury or unnecessary suffering, and weapons that are by their nature indiscriminate. Also prohibited are weapons expected to cause long-term, widespread, and severe damage to the natural environment. International human rights law is consistent with these prohibitions. The remainder of the chapter deals with specific weapons: bacteriological or biological weapons, booby-traps, chemical weapons, dum-dum bullets, explosive or incendiary bullets, fragmentation weapons, incendiary weapons, landmines, and laser weapons.
Prisoners of War and Internment
Authors: Murray Daragh
Published: August 2024

This chapter deals with prisoners of war, internment, and other forms of detention, where detention is based on security or military considerations related to the armed conflict. The law of armed conflict establishes detailed rules in relation to prisoners of war and internment; these rules provide the primary framework. International human rights law reinforces these rules, adding greater specificity in certain situations. Prisoners of war are not convicted criminals, and are not detained in relation to any illegal activity. As such, their detention is not punitive, but is based on military necessity and serves only to prevent their return to hostilities. Internment is detention carried out to prevent future activity. International human rights law requires that internment be utilized only as a last resort, on the basis of ‘a present, direct, and imperative threat’.