bluuebunny/crossref_metadata_2025 huggingface dataset:
Miscellaneous Disputes
Authors: Timothy A
Published: August 2024

This chapter examines a number of other issues that arise in joint venture agreements, which are the cause of or are related to disputes. This includes disputes in relation to force majeure claims, fraud, and misrepresentation, and the partition of leases. There is a lack of reported cases arising in relation to force majeure under joint venture agreements directly, but careful consideration is required when drafting force majeure provisions for inclusion in a joint venture agreement because of the potential impact on the obligations between the parties. There are a number of cases concerning fraud and misrepresentation, particularly in the formation and early stages of joint ventures. Partition of leases is an issue that will only arise in relation to certain states in the United States.
Managing Joint Venture Disputes
Authors: Timothy A
Published: August 2024

This chapter highlights some of the issues to which particular attention may be required when considering joint venture disputes in the energy and natural resource sectors, including joint venture dispute resolution provisions and dispute management. It discusses the importance of selecting effective dispute resolution mechanisms that are well-suited to the types of disputes that may arise. It also considers aspects of disputes in the energy and natural resources sector which make them more complex to manage and resolve. It suggests steps that can be taken if a dispute arises to ensure that it is managed effectively and highlights particular issues that can arise in connection with disputes in relation to the sector.
Conclusion
Authors: Timothy A
Published: August 2024

This chapter gives a short conclusion to the preceding chapters of the book, which covers the range of issues that arise in joint ventures in the energy and natural resource sectors. There is a wealth of jurisprudence on joint venture disputes from a number of these sectors and jurisdictions, which can provide extensive guidance to companies, legal counsel, courts, and tribunals dealing with joint venture disputes arising in the global energy and natural resource sectors. This book captures that jurisprudence and provides many lessons to be learned to effectively manage a joint venture.
The Meaning of Investment Under Art 25 ICSID Convention
Authors: Petsche Markus
Published: August 2024

As has been explained in Chapter 3, most tribunals and scholars consider that the term ‘investment’ in Art 25 ICSID Convention has an ‘independent’ or ‘objective’ meaning. This chapter explores what that meaning is. Section II discusses the prevailing arbitral approach, the so-called ‘Salini test’. It examines (a) the history, evolution, and nature of this test; (b) the three core Salini requirements (contribution, duration, and risk); (c) the controversial criterion of a contribution to the economic development of the host State; and (d) other criteria occasionally applied in arbitral practice. It also offers a critical assessment of the Salini test, highlighting its various flaws and inconsistencies. Sections III and IV examine two alternative, less widely followed, approaches, namely, the permissibility test and the commercial-transaction test. Section V provides an overview of the principal scholarly debates and viewpoints.Please suggest 5—10 keywords that can be used for describing the content of the chapter.
Investment Status of Specific Categories of Assets and Operations
Authors: Petsche Markus
Published: August 2024

This chapter examines the investment status of several specific categories of assets and operations. These include construction and service contracts concluded with the host State or a host State entity (Section II), debt instruments and, more particularly, sovereign bonds and loans (Section III), arbitral awards and court judgments obtained by the presumed investor (Section IV), and funds ‘invested’ (or expenses incurred) in connection with an alleged investment (Section V). Debt instruments and awards and judgments are discussed primarily because of the controversy surrounding their investment status. As far as construction and service contracts concluded between the presumed investor and the host State are concerned, there is no such controversy—on the contrary, there seems to be quasi-universal agreement among tribunals that such contracts generally qualify as investments. This conclusion is not, however, as self-evident as one may think, and it is thus appropriate to examine the relevant decisions more closely (and critically), as other writers have done. Lastly, there appears to be latent ambiguity as to the relevance of funds ‘invested’, ie the money spent, by the alleged investor, for the existence of an investment, including the question of whether those funds may, in and of themselves, constitute an investment. It is thus useful to attempt to shed some light on these issues.
Bretton Woods and the Creation of the International Monetary Fund and the World Bank
Authors: Bradlow Daniel D
Published: August 2024

Chapter 2 discusses the Bretton Woods Conference, the purpose of which is to get other countries to buy into the principles for the new institutions agreed by the US and the UK. The Bretton Woods Conference ended with the participants signing two new treaties, one of which established the International Monetary Fund (IMF) and the other the International Bank for Reconstruction and Development (IBRD). The IMF was established as a fund to which each member state would contribute resources and from which each member state was entitled to temporarily withdraw resources to deal with its balance of payments problems, provided it was complying with the obligations specified in the IMF’s Articles of Agreement. Meanwhile, the IBRD was established to be a bank that would help finance the reconstruction of Europe after the Second World War and the development of its poorer member states. The chapter then considers the international legal achievements of these institutions and the agreements reached at Bretton Woods.
The Articles of Agreement of the International Financial Institutions
Authors: Bradlow Daniel D
Published: August 2024

Chapter 3 examines the treaties that created the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD). The organizations’ Articles of Agreement set out both the mandates, functions, and governance arrangements for each organization and the rights and responsibilities of their member states. They are also an expression of the vision of the Bretton Woods Conference delegates for the governance of the post-Second World War international monetary and financial system and the role that the IMF and the IBRD should play in it. The chapter begins by looking at some general international legal issues that are relevant to these two treaties. It then considers in detail the IMF’s Articles and the IBRD’s founding treaty. The chapter discusses the purpose of the institutions, membership issues, governance, financial resources, functions, and general issues.
The Challenges Facing the International Financial Institutions
Authors: Bradlow Daniel D
Published: August 2024

Chapter 8 highlights the challenges that the international financial institutions (IFIs) are facing. It focuses on the World Bank Group (WBG) and the International Monetary Fund (IMF), which will be referred to collectively as the IFIs. It should be noted, however, that some of the challenges and the international legal developments discussed in the chapter are also likely to also apply, mutatis mutandis, to the regional development banks and regional financial arrangements. The chapter begins by explaining how the context in which the IFIs are having to conduct their operations has changed. It then describes in more detail the specific challenges confronting the IFIs that have international legal implications. International law on its own cannot help the IFIs overcome the demanding challenges they face in an ever-changing global political economy. However, it can help them manage these challenges and avoid the pitfalls that they will face as they navigate this ongoing evolution in their roles in international finance and global economic governance.
The Right to Parental Direction and Guidance Consistent with a Child’s Evolving Capacities
Authors: Tobin John , Varadan Sheila
Published: August 2024

This section is about Article 5 of the UN Convention on the Rights of the Child dealing with The Right to Parental Direction and Guidance Consistent with a Child’s Evolving Capacities.
The Right to Preservation of a Child’s Identity
Authors: Tobin John , Todres Jonathan
Published: August 2024

This section is about Article 8 of the UN Convention on the Rights of the Child dealing with The Right to Preservation of a Child’s Identity.
Protection against the Illicit Transfer and Non-Return of Children Abroad
Authors: Tobin John , Lowe Nigel , Luke Elliot
Published: August 2024

This section is about Article 11 of the UN Convention on the Rights of the Child dealing with Protection against the Illicit Transfer and Non-Return of Children Abroad.
The Right to Freedom of Thought, Conscience, and Religion
Authors: Doné Sylvie Langlaude , Tobin John
Published: August 2024

This section is about Article 14 of the UN Convention on the Rights of the Child dealing with The Right to Freedom of Thought, Conscience, and Religion.
Parental Responsibilities and State Assistance
Authors: Tobin John , Seow Florence
Published: August 2024

This section is about Article 18 of the UN Convention on the Rights of the Child dealing with Parental Responsibilities and State Assistance.
The Right to Protection against All Forms of Violence
Authors: Tobin John , Cashmore Judy
Published: August 2024

This section is about Article 19 of the UN Convention on the Rights of the Child dealing with The Right to Protection against All Forms of Violence.
Special Protection for Children Deprived of Their Family Environment
Authors: Tobin John
Published: August 2024

This section is about Article 20 of the UN Convention on the Rights of the Child dealing with Special Protection for Children Deprived of Their Family Environment.
The Right to Health
Authors: Tobin John
Published: August 2024

This section is about Article 24 of the UN Convention on the Rights of the Child dealing with The Right to Health.
The Right to Periodic Review
Authors: Tobin John , Luke Elliot
Published: August 2024

This section is about Article 25 of the UN Convention on the Rights of the Child dealing with The Right to Periodic Review.
The Aims of Education
Authors: Lundy Laura , Tobin John
Published: August 2024

This section is about Article 29 of the UN Convention on the Rights of the Child dealing with The Aims of Education.
Cultural, Linguistic, and Religious Rights of Minorities and Indigenous Children
Authors: Harris-Short Sonia , Tobin John
Published: August 2024

This section is about Article 30 of the UN Convention on the Rights of the Child dealing with Cultural, Linguistic, and Religious Rights of Minorities and Indigenous Children.
The Right to Protection from Economic Exploitation
Authors: Alston Philip
Published: August 2024

This section is about Article 32 of the UN Convention on the Rights of the Child dealing with The Right to Protection from Economic Exploitation.
Protection from Sexual Exploitation and Sexual Abuse
Authors: Tobin John , Seow Florence
Published: August 2024

This section is about Article 34 of the UN Convention on the Rights of the Child dealing with Protection from Sexual Exploitation and Sexual Abuse.
Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty
Authors: Tobin John , Hobbs Harry
Published: August 2024

This section is about Article 37 of the UN Convention on the Rights of the Child dealing with Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty.
The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography
Authors: Tobin John
Published: August 2024

This section is about the Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography.
The Committee on the Rights of Persons with Disabilities
Authors: Lord Janet E , Stein Michael Ashley
Published: August 2024

This chapter assesses the Committee on the Rights of Persons with Disabilities (CRPD), the establishment of which was triggered by the entry into force of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Long pushed to the margins of society, historically neglected even within the UN human rights system and mainstream human rights practice, persons with disabilities have faced systemic discrimination in every aspect of life. Their rights ignored or gravely abused, disability advocates made the case for the development of a core human rights convention that would address in detail the barriers they face and provide guidance on how to systematically remove these artificial impediments and facilitate full inclusion. The UNCRPD protects the rights of the world’s largest minority, more than one billion persons with disabilities. The chapter outlines the intended purposes and functions of the CRPD as set forth in the UNCRPD and its Optional Protocol.
Investor–State Dispute Settlement and Review of New IP-Related Investment Cases
Authors: Klopschinski Simon , Gibson Christopher S , Grosse Ruse-Khan Henning
Published: August 2024

This chapter reviews the basic mechanism of investor–state dispute settlement (ISDS), including consent, jurisdiction, and options for investors to bring their cases. The ISDS framework introduces a different type of enforcement mechanism for intellectual property (IP) owners engaged in foreign investment. For a claim arising from government conduct that has a harmful impact on the IP-based investment, legal grounds may exist under an international investment agreement (IIA) to support a claim that may be brought directly against the host state in investor–state arbitration. The vast majority of IIAs, whether bilateral investment treaties (BITs) or regional free trade agreements (FTAs) containing investment protection chapters, include ISDS provisions in which governments have given their consent that, should an investment dispute arise with a private investor from another contracting state, they will submit to international arbitration. The chapter then looks at non-IIA options for investors and explores pre-arbitral steps and the relationship between IP-specific proceedings on a national level and the ‘fork in the road’ clauses in IIAs, along with newly proposed appellate mechanisms for ISDS and the costs of ISDS proceedings. It also considers the four IP-based investment cases that have emerged at the time of writing. Finally, the chapter highlights the overlapping points of IP rights and IIAs in this new multidisciplinary arena of intellectual property.
Introduction to the Specialized Agencies Convention
Authors: Reinisch August
Published: August 2024

This chapter provides an introduction to the Convention on the Privileges and Immunities of the Specialized Agencies, or the Specialized Agencies Convention. The Specialized Agencies Convention serves as an important treaty clarifying the rights and obligations of the covered international organizations in relation to their member States that have ratified it. In addition, and particular with regard to non-parties of the Specialized Agencies Convention, the privileges and immunities of the Specialized Agencies are governed by bilateral headquarters or seat agreements as well as specific legislation in some States. Specialized agencies are universally open international organizations, ‘established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields...’. The remainder of the chapter discusses the drafting history, structure, and provisions of the Specialized Agencies Convention.
Juridical Personality (Article I Section 1 General Convention)
Authors: Blokker Niels
Published: August 2024

This chapter discusses Article I Section 1 of the General Convention entitled ‘Juridical Personality’, which deals with the legal status of the UN in the national legal order. Art. I Section 1 gives the UN the capacity to contract, to acquire and dispose of immovable and movable property, and to institute legal proceedings. This capacity is not only exercised by the UN, but also by some subsidiary organs of the UN in their own name. It is not immediately clear from the text of Art. I Section 1 and from its travaux préparatoires whether the three specifically mentioned capacities encompass an exhaustive list, or whether the UN may also use other capacities. In practice this has not been an issue. The UN has been able to operate effectively under national law using these three capacities.
Inviolability of Archives (Article III Section 6 Specialized Agencies Convention)
Authors: Burci Gian Luca
Published: August 2024

This chapter discusses Article III Section 6 of the Specialized Agencies Convention, which is identical to Art. II Section 4 of the General Convention. The sole obvious difference is the reference to ‘specialized agencies’ rather than ‘United Nations’. Not all Specialized Agencies are in the same situation with regard to the regulation of access to their information and records. While on the one hand the World Bank and the International Monetary Fund have adopted and revised extremely detailed and elaborate policies and implementation plans, other agencies rely on older and more basic statements of policy or practice, while yet others are as of mid-2015 at different stages of revision and reform of their policies. In yet other cases, it proved impossible to obtain evidence as to the existence and content of a dedicated information disclosure policy. The overall picture is therefore quite fragmented and heterogeneous and does not lend itself to a coherent analysis.
Financial Operations (Article III Sections 7–8 Specialized Agencies Convention)
Authors: Pavoni Riccardo
Published: August 2024

This chapter discusses Article III Section 7–8 of the Specialized Agencies Convention, which lays down a privileged treatment for the financial transactions involving ‘funds, gold, or currency’ held by the Specialized Agencies. Sections 7 and 8 are only concerned with the funds controlled by the agencies themselves, and do not cover the personal funds and bank accounts held by the representatives of their members or by their officials. The wording of Sections 7 and 8 is almost identical to the parallel norms of Art. II Sections 5 and 6 of the General Convention. The chapter first draws attention to the peculiarities of Sections 7 and 8 concerning their context, historical background, and terminological deviations vis-à-vis the provisions in the General Convention. It then outlines insights arising from the practice involving the financial privileges of the specialized agencies.
Experts on Missions (Article VI Sections 22–23 General Convention)
Authors: Bandyopadhyay Ronja , Iwata Tomoko
Published: August 2024

This chapter discusses Article VI Sections 22–23 of the General Convention, which outlines the privileges and immunities for individuals falling within the category ‘experts on missions for the United Nations’. Experts on mission enjoy what are known as ‘quasi-diplomatic’ privileges and immunities, insofar as they enjoy certain immunities that are typically enjoyed by diplomatic envoys. These include the immunity from personal arrest and the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys. But unlike UN officials, they are not exempted from taxation on the salaries and emoluments paid to them by the UN or immunity from national service obligations. The primary issue with respect to the application of Art. VI is the question of who may be considered as an expert on mission.
Annex VI—International Bank for Reconstruction and Development (IBRD)
Authors: Okeke Edward Chukwuemeke
Published: August 2024

This chapter discusses Annex VI of the Specialized Agencies Convention, which modifies the standard clauses of the Convention with regard to the International Bank for Reconstruction and Development (World Bank). Under the Convention, the privileges and immunities of the Bank are complementary to those under its Articles of Agreement. Except for the special carve-out on the Bank's jurisdictional immunity, which substitutes Art. VII Section 3 of the Articles for Section 4 of the Specialized Agencies Convention, the privileges and immunities of the Bank are not curtailed but augmented by the Convention. Thus, where necessary both the Convention and the Articles must be construed in tandem as a corpus of law governing the privileges and immunities of the Bank. For the most part, the privileges and immunities of the Bank are respected, even though in the few instances where there are challenged the Bank must participate in proceedings to invoke and uphold them.
Annex XVII—United Nations Industrial Development Organization (UNIDO)
Authors: Moradi Behrouz
Published: August 2024

This chapter discusses Annex XVIII of the Specialized Agencies Convention, which modifies the standard clauses of the Convention and their application to the United Nations Industrial Development Organization (UNIDO). Annex XVII was adopted on 3 July 1987, shortly after the conversion of UNIDO into a Specialized Agency. Since then, a total of 23 states have acceded to the Specialized Agencies Convention in respect of UNIDO. Annex XVII consists of just two parts, which supplement the standard clauses of the Specialized Agencies Convention. As in other annexes, paras 1(a)-(c) regulate the functional privileges and immunities of experts serving on committees of or performing missions for UNIDO, while para 2 specifies the additional category of officials who, besides the Director-General, enjoy diplomatic status under Art. VI Section 21 of the standard clauses.
The Privileges and Immunities of the Organization for the Prohibition of Chemical Weapons (OPCW)
Authors: Dojas Alberto E
Published: August 2024

This chapter discusses the privileges and immunities of the Organisation for the Prohibition of Chemical Weapons (OPCW). The primary basis of the OPCW's privileges and immunities are contained in the privileges and immunities provisions of the Chemical Weapons Convention (CWC). Art. VIII Section E of the Convention states that the OPCW enjoys on the territory and in any other place under the jurisdiction or control of a State Party such privileges and immunities as are necessary for the exercise of its functions. Privileges and immunities are also extended to delegates of States Parties, their alternates and advisers, representatives appointed to the Executive Council with their alternates and advisers, the Director General and staff members as are necessary for the independent exercise of their functions in connection with the Organization. These privileges and immunities include the inviolability of OPCW premises, archives, and property; exemptions from taxes and customs duties; and freedom of OPCW financial assets and transactions from financial controls, regulations, notification requirements, or moratoria of any kind.
The Course of an Investment Arbitration: Overview of the Procedure
Authors: Rubins Sabahi
Published: August 2024

This chapter provides an overview of the procedure of investment arbitration. Investment arbitrations resemble commercial arbitrations in many ways but are dramatically different in others. Above all, the presence of a sovereign state in every such dispute can transform the tone and nature of an investment dispute. The procedural aspects of a case in arbitrations subject to the ICSID Convention are determined pursuant to ICSID Arbitration Rules and relevant provisions of the applicable treaty. In non-ICSID investment treaty cases, the procedure is determined by arbitral rules selected by the parties such as the UNCITRAL Arbitration Rules, together with the relevant provisions of an applicable BIT, and the law of the legal place of the arbitration. Many BITs provide for a consultation or amicable negotiation period before disputes are submitted to arbitration. Meanwhile, arbitration pursuant to the ICSID Convention takes place in a self-contained procedural system, which is normally considered a-national, independent of any particular legal situs.
Enforcement and Execution
Authors: Rubins Sabahi
Published: August 2024

This concluding chapter addresses the enforcement and execution of investment treaty awards. Enforcement of an arbitration award is a broad and sometimes ambiguous term that is often used to refer to any post-award attempt by the winning party to obtain the fruits of its victory. It can include (1) confirmation or exequatur proceedings at the seat of the arbitration; (2) proceedings to have the award enforced as a judgment in jurisdictions other than the seat; and (3) proceedings to execute upon an award by levying on the losing party’s assets, either at the seat or in other jurisdictions where assets can be found. Different legal rules govern each of the three types of proceedings. The chapter then considers the 1958 New York Convention and the International Centre for Settlement of Investment Disputes (ICSID) Convention provisions on enforcement as well as the sovereign immunity defences to execution in light of decisions of various national courts.
Policies and Institutional Strategies for Successful Sexual Violence Prosecutions
Authors: Jarvis Michelle , Nabti Najwa
Published: August 2024

This chapter sets out the institutional strategies the Office of the Prosecutor (OTP) pursued to overcome obstacles and identifies institutional policy priorities for future prosecution offices. Such strategies include using ‘gender focal points’ and other dedicated mechanisms for focusing attention on sexual violence crimes, developing a comprehensive written policy for sexual violence crimes, addressing gender bias within the OTP, developing an effective investigation strategy for sexual violence crimes, developing effective legal strategies for prosecuting sexual violence crimes, ensuring effective dissemination and implementation of OTP policies and strategies on sexual violence crimes, identifying gaps in the OTP’s policies and strategies on sexual violence crimes, and focusing on sexual violence crimes over time.
An Introduction to Transnational Criminal Law
Authors: Boister Neil
Published: August 2024

The second edition of an Introduction to Transnational Criminal Law examines the international instruments that oblige states to criminalise certain activities of a harmful cross border nature or effect, and take a number of procedural steps against these criminals in order to enable cooperation with other states in the suppression of these crimes. The criminological and conceptual discussion that kicks off the new edition explores in greater detail the expansion of the type of international instrument used from multilateral treaty to soft law recommendations and Security Council Resolutions. Attention is then focussed on an enlarged range of offences including piracy, modern slavery, migrant smuggling, drug trafficking, terrorism, transnational organised crime, corruption, money laundering, cybercrime, environmental crimes, weapons trafficking, trafficking in cultural property, and a range of emerging crimes including intellectual property offences. The book then turns to the requirements in the governing international instruments to establish a broad territorial and extraterritorial jurisdiction over these crimes. The remainder of the book engages in a more detailed examination of the enforcement of this jurisdiction through police to police cooperation in the exchange of information as well as more direct forms, formal legal assistance between cooperating criminal justice systems with a specific discussion of asset recovery, and finishes with a full discussion of the difficulties of extraditing the transnational criminal. The final part of the book looks at the implementation of these laws in practice and the institutions that have been developed to implement them.
Collection, Exchange, and Analysis of Information on Corruption
Authors: Borlini Leonardo
Published: August 2024

This section is about Article 61 of the United Nations Convention Against Corruption (UNCAC), dealing with Collection, Exchange, and Analysis of Information on Corruption
Article 7 UN Charter
Authors: Gowlland-Debbas Vera , Forteau Mathias
Published: August 2024

This section is about Article 7 UN Charter
Article 36 UN Charter
Authors: Giegerich Thomas
Published: August 2024

This section is about Article 36 UN Charter
Article 94 UN Charter
Authors: Tams Christian J
Published: August 2024

This section is about Article 94 UN Charter
Article 95 UN Charter
Authors: Finke Jasper
Published: August 2024

This section is about Article 95 UN Charter
Article 23
Authors: Ollivier Antoine
Published: August 2024

This section is about Article 23 of the Statute of the International Court of Justice
Article 25
Authors: Palchetti Paolo
Published: August 2024

This section is about Article 25 of the Statute of the International Court of Justice
Article 26
Authors: Palchetti Paolo
Published: August 2024

This section is about Article 26 of the Statute of the International Court of Justice
Article 31
Authors: Kooijmans Pieter Hendrik , Bordin Fernando Lusa
Published: August 2024

This section is about Article 31 of the Statute of the International Court of Justice
Article 38
Authors: Pellet Alain , Müller Daniel
Published: August 2024

This section is about Article 38 of the Statute of the International Court of Justice
Article 39
Authors: Kohen Marcelo G
Published: August 2024

This section is about Article 39 of the Statute of the International Court of Justice
Article 48
Authors: Bernárdez Santiago Torres , Mbengue Makane Moïse
Published: August 2024

This section is about Article 48 of the Statute of the International Court of Justice
Article 63
Authors: Miron Alina , Chinkin Christine
Published: August 2024

This section is about Article 63 of the Statute of the International Court of Justice
Article 65
Authors: d'Argent Pierre
Published: August 2024

This section is about Article 65 of the Statute of the International Court of Justice
Relationship to Intellectual Property and Environmental Instruments
Authors: Lixinski Lucas , Blake Janet
Published: August 2024

This chapter explores the relationships between the 2003 ICHC and two key domains: intellectual property (‘IP’) and traditional knowledge (‘TK’). It focuses on conceptual overlaps and distinctions and enquires into what this distinction means for interpreting the 2003 ICHC in relation to other existing international legal frameworks. The chapter pays attention to the drafting history of Article 3(b) and to the issue of the relationship to IP, and particularly the developing regime for Traditional Cultural Expressions (‘TCEs’) and TK within World Intellectual Property Organization (‘WIPO’). Afterward, this chapter examines the issue of biological and ecological diversity in the context of ICH. It brings these two strands together in discussing some general guidelines for the interpretation and implementation of Article 3(b), before presenting some concluding remarks on the issue.
Role of States Parties
Authors: Carducci Guido
Published: August 2024

This chapter deals with Article 11. Article 11 is one of the most important provisions of the Convention to the extent that it sets out the mandatory ‘Role of States Parties’ under the Convention, i.e. the two main legal obligations that any State Party is to comply with, and with regard to any ICH present on its territory. The chapter argues that there is no need for such ICH to be inscribed on either of the two Lists (the List of Intangible Cultural Heritage in Need of Urgent Safeguarding and the Representative List of the Intangible Cultural Heritage of Humanity). As this chapter illustrates, the provision is rather clear, straight-forward, and should not raise significant difficulties in its interpretation. The Committee is to follow up on the practice of most States Parties as to the implementation of Article 11 and, where appropriate, develop in its Directives suitable suggestions to improve such practice.
Education, Awareness-Raising, and Capacity-Building
Authors: Blake Janet
Published: August 2024

This chapter takes a look at Article 14. This article deals with education, awareness-raising, and capacity-building (within communities) in relation to ICH, all of which are related issues and which include also disseminating information and promotion of this heritage. The chapter shows that States Parties have taken their obligations under Article 14 (and Article 13(d)(i)) quite seriously. There is a wide variety of approaches taken towards implementing awareness-raising and transmission which one would expect in view of the enormous differences that exist between the situations, capacities, and educational systems in various countries. This variety of approaches also suggests that having some mechanism for Parties to share experiences and good practice over educational programmes, awareness-raising, and capacity-building is an important aspect of improving the implementation of these provisions. It would seem clear also that some of the measures set out in Article 14 are better implemented than others, with the majority of States Parties incorporating some form of ICH teaching into school curricula but development being slower in the areas of higher education courses dedicated to ICH and its safeguarding/management. Similarly, non-formal educational activities have generally been accorded less attention by Parties than formal education.
Intangible Cultural Heritage ConventionThe Emblem
Authors: Bevins Matthew
Published: August 2024

This chapter suggests that a major barrier in obtaining the right to use the ICHC emblem is caused by the requirement that the emblem be accompanied by the UNESCO emblem. This has the consequence that the use of the emblem must be authorized under both the directives for the 2003 Convention, and under the Directives concerning the use of the UNESCO emblem. While there is a balance that must be struck between the use of the emblem to further the aims of the Convention, with the need to prevent its abuse in unauthorized purposes, this chapter suggests that the rules guiding the use of the emblem are too complicated and inflexible and ought to be streamlined to make it easier for people to obtain authorisation to use it. One solution to streamline the process of obtaining authorization to use the emblem is for the General Assembly or Committee to entrust the National Commissions for UNESCO or some other designated body with full authority to authorize use of the Convention emblem. This chapter thus considers the development of the emblem before turning to various criticisms and suggestions for improving its use.
Scope of Application of Human Rights
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

Chapter 3 approached human rights from the standpoint of duty bearers. This chapter changes perspective and asks: Who has human rights entitlements, to what extent, where, and when? These questions address the scope of application of human rights in personal term, substantive terms, territorial terms, and temporal terms. The personal scope of application covers human rights, rights of citizens, rights of aliens; natural persons and legal persons; and individual rights and collective rights. The discussion on substantive scope of application covers scope of protection and reservations. The territorial scope of application covers basic principles; state obligations in the event of loss of sovereignty over parts of its national territory; state obligations in the event of extraterritorial conduct; and state obligations in the event of extraterritorial effects of internal conduct. The temporal scope of application covers denunciation and derogation. The final section discusses the elements of a human rights violation.
Basic Principles
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

This chapter presents an overview of the human rights implementation and monitoring regime. It covers the domestic implementation of human rights, international mechanisms, and international criminal justice. Human rights monitoring and implementation mechanisms may perform the following main functions: (1) stopping ongoing human rights violations by ensuring that action to do so is indeed taken; (2) remedying violations by ensuring that states responsible for violations provide reparatio where human rights violations cannot be halted, or where by their very nature they occur before mechanisms can intervene (e.g. extrajudicial killings); (3) holding persons responsible for violations accountable by investigating, prosecuting and punishing relevant crimes; and (4) preventing future violations by ensuring that states and their authorities are effectively aware of their obligations to respect, protect and fulfil human rights.
Protection of the Intellectual and Spiritual Sphere
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

This chapter discusses the human rights that protect the intellectual and spiritual sphere of human life, including the freedom of thought, conscience, and opinion; the right to education; cultural rights; and freedom of religion. Freedom of thought, conscience, and opinion promote ideological pluralism, one of the indispensable foundations of a democratic society. By guarding the individual's intellectual autonomy, this right protects the core of the private sphere. Therefore it enjoys absolute protection and is non-derogable. The right to education is classified as a social, economic, and cultural right. However, it simultaneously comprises aspects of classic civil liberties by protecting, for example, the freedom of parents' educational choices against state interference.
Applying the Lessons of International Commercial Arbitration to International Commercial Mediation
Authors: Strong S I
Published: August 2024

Traditional analyses of international commercial mediation focus primarily on either the step-by-step process associated with resolution of particular disputes or the relative merits of mediation over alternatives such as transnational litigation or international commercial arbitration. However, there is a significant shortage of comprehensive scholarly examinations of the international mediation regime as a whole, such as those that are recommended by experts in dispute system design (DSD). DSD is a unique area of study, since it does not seek to promote or analyse a particular methodology or process but instead focuses on larger structural issues so as to improve dispute resolution at a systemic level. Only by adopting this type of larger analytical framework can parties, policymakers and scholars truly appreciate the forces influencing decisions relating to the resolution of cross-border business disputes. Although a full DSD analysis would be beyond the scope of this chapter, it considers a number of critical design issues relating to international commercial mediation, building off a recent large-scale empirical study conducted by the author in this area of law. Among other things, the chapter applies a default theoretic analysis to the field of international dispute resolution to consider how various visible and invisible ‘nudges’ affect individual and institutional decisions regarding international commercial mediation. The discussion not only provides an innovative structural perspective on the interplay between litigation, arbitration and mediation in the international commercial context but also suggests how the existing system might be redesigned to create a more effective means of resolving cross-border business conflicts.
Mediation of Financial Disputes
Authors: Forestieri Ilaria , Paech Philipp
Published: August 2024

In recent years, a fragmented global picture of legislation supporting mediation in finance has emerged, and a number of alternative dispute resolution (ADR) service providers have started to offer mediation services specifically for the financial market. Although academics and practitioners express great appreciation for alternative resolution procedures in finance, mediation is said to lag behind its potential. This chapter shows that a number of characteristics of financial transactions suggest that mediation in finance could increase efficiency to an extent that would not be possible otherwise. However, there are clear limitations to mediation in finance: the main characteristic of financial transactions consists in the preparedness to take and manage counterparty risks. The financial industry has developed a framework to manage counterparty risk, in accordance with existing laws in nearly all developed financial markets. However, the main idea underlying mediation, that is to form a new agreement adjusting contractual obligations, is largely irreconcilable with risk management as practiced at the moment. Hence, only those disputes that do not touch upon issues associated with transfers of value can be the object of mediation, whereas all transactions that are ‘financial’ in nature must remain subjected to insolvency or bankruptcy procedures.
The Preamble
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about the preamble of the Treaty on the Prohibition of Nuclear Weapons
Article 4: Towards the Total Elimination of Nuclear Weapons
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 4 of the Treaty on the Prohibition of Nuclear Weapons, dealing with the total elimination of nuclear weapons.
Article 7: International Cooperation and Assistance
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 7 of the Treaty on the Prohibition of Nuclear Weapons, dealing with International Cooperation and Assistance.
Article 19: Depositary
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 19 of the Treaty on the Prohibition of Nuclear Weapons, dealing with the depositary of this Treaty.
The Sources of International Law
Authors: Thirlway Hugh
Published: August 2024

This new edition of Hugh Thirlway's authoritative text provides an introduction to one of the fundamental questions of the discipline: what is, and what is not, a source of international law. Traditionally, treaties between states, custom deriving from state practice, and general principles of law were seen as the primary means by which international law was created. However, whether this is still an adequate definition of the sources, and how they may operate in modern international society, has been questioned in significant ways. This book provides an insightful inquiry into all the recognized, or asserted, sources of international law. Some matters it investigates are the impact of ethical principles on the creation of international law; whether 'soft law' norms come into being through the same sources as binding international law; and the place of jus cogens norms, and those involving rights and obligations erga omnes in the creation of international legal norms. It studies the notion of 'general principles of international law', and the evolving relationship between treaty-based law and customary international law. Re-examining the traditional model, it investigates the increasing role of international jurisprudence, and the activities of international organizations and non-state actors as potential new sources.
Subsystems of International Law
Authors: Thirlway Hugh
Published: August 2024

This chapter discusses the subsystems of international law. It covers human rights law, humanitarian law, international trade law, international environmental issues, and international criminal law. These subsystems of international law are sometimes considered to be self-contained regimes. The key aspect seems to be whether special remedies for non-compliance with the rules of the subsystem are provided for within the system, especially if they are asserted to be exclusive of the remedies provided by general international law. The key question is: may the law applicable within the framework of the regime in question be derived from some source peculiar to that regime, not being one of those recognized in Article 38 of the ICJ Statute?
A Brief Note in Conclusion
Authors: Thirlway Hugh
Published: August 2024

This chapter summarizes key themes and presents some final thoughts. It concludes that the book attempts to give a picture of the long-established theory of the creation of international law that attributes each norm, directly or ultimately, to one of the sources identified in Article 38 of the ICJ Statute. It argues that so long as Article 38 of the ICJ Statute is not amended, the principal judicial body of the world will be bound to identify and apply law in essentially the same way as was contemplated in 1920. Respect for that text has been shown, by the work of the Court, not to prevent development of the law, but merely to limit the way in which such development is to be looked for, and looked at.
Article 4
Authors: Alfredsson Gudmundur
Published: August 2024

This chapter comments on Article 4 of the Framework Convention for the Protection of National Minorities (FCNM). Equality before the law and equal protection of the law are frequently denied to minority persons. Usually coupled with discrimination, such denials occur frequently in European countries, notwithstanding general respect for the rule of law and democratic systems of government. Article 4 contains three essential elements of minority rights: the rights of equality before the law and of equal protection by the law; the prohibition of discrimination against a person for reasons of belonging to a minority; and the introduction of adequate measures for the promotion of full and effective equal rights for majority and minority persons. However, the language of this Convention remains weak compared with existing standards in international human rights instruments. Furthermore, direct minority access to justice within the Council of Europe continues to be limited.
Article 14
Authors: de Varennes Fernand , Thornberry Patrick
Published: August 2024

This chapter comments on Article 14 of the Framework Convention for the Protection of National Minorities (FCNM). Article 14 partially deals with the vexed issue of minority languages in education. Article 14(1) addresses the broadest aspects of language learning, without specific reference to educational systems. Article 14(2) contains the third reference in the Convention to minority ‘areas’, wherein certain, more specific rights are to be enjoyed by members of minorities subject to the fulfilment of certain triggering conditions. The Advisory Committee has specifically dealt with Article 14(1) on only a few rare occasions, and for this reason there are perhaps not as clear guidelines and understanding provided as to its content and impact as with other provisions. Article 14(2) echoes the hesitations of equivalent paragraphs elsewhere in the Convention, and, as elsewhere, the Convention organs try to make sense of them.
Article 15
Authors: Weller Marc
Published: August 2024

This chapter comments on Article 15 of the Framework Convention for the Protection of National Minorities (FCNM). Article 15 has served as a focal point for the crystallization of legal obligations concerning effective participation of minorities. The rather general terms of the Article are beginning to be filled out with concrete legal meaning. This is certainly the case in relation to the overall structure of the state, the need for adequate parliamentary representation, consultative processes, and executive representation. In other, sensitive areas, debates will continue on claims for territorial autonomy and issues of party registration. Article 15 has also served to highlight the obligation of states to go beyond the combating of discrimination when considering cultural, social, and economic opportunities of persons belonging to minorities. Overall, implementation practice on this article has been considerable.