bluuebunny/crossref_metadata_2025 huggingface dataset:
Protection of Sovereignty
Authors: Calderoni Francesco
Published: June 2024

This chapter cites how Article 4 of United Nations Convention against Transnational Organized Crime (UNTOC) highlighted sovereign equality, territorial integrity, and non-intervention in domestic affairs as fundamental principles of international criminal law. The provision aims to ensure the principles’ consistency within the measures involved in the implementation of the Convention. Article 4 is largely influenced by the provisions provided in the 1998 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the 1988 Drug Trafficking Convention. Moreover, UNTOC continues the trend of expanding the scope of international treaties in criminal matters to encompass several ordinary crimes. The chapter then elaborates on the interpretation of the paragraphs in Article 4.
Criminalization of Participation in an Organized Criminal Group
Authors: Calderoni Francesco
Published: June 2024

This chapter looks into Article 5 taking the role as one of the core articles of the United Nations Convention against Transnational Organized Crime (UNTOC) that promoted some level of harmonization and cooperation. It aims to criminalize participation in an organized criminal group as defined in Article 2(a). The compromise solution between common law and civil law traditions resulted in requiring States Parties to criminalize either or both of two distinct types of conduct, amenable to the two legal traditions. Moreover, the compromise solution was directly inspired by the European Union Joint Action 733 of 1998. The limitation of Article 5 revolves around its wording since State Parties can maintain their traditional approaches, which may hinder international cooperation and harmonization.
Liability of Legal Persons
Authors: Weißer Bettina
Published: June 2024

The chapter expounds on the liability of legal persons as indicated by Article 10 of the United Nations Convention against Transnational Organized Crime (UNTOC). Legal persons play an important role in the commission of organized crimes, especially when crimes are often committed through or under the cover of legal entities. However, since several States Parties do not provide for criminal liability of legal persons, the Convention does not require legal entities to be held criminally liable. Thus, UNTOC requires alternative solutions to be effective, proportionate, and dissuasive. Meanwhile, the men’s rea requirement is derived from the specifics of the respective offence committed by the (natural or legal) person.
Establishment of Criminal Record
Authors: Schloenhardt Andreas
Published: June 2024

This chapter discusses Article 22 of the United Nations Convention against Transnational Organized Crime (UNTOC). It explains how the article aims to assist criminal justice authorities in obtaining all the necessary information to gain the full possible picture of the alleged offender and their prior offence. Moreover, the provision suggests that States Parties adopt measures allowing them to make the offender’s previous convictions in another State cognizable in proceedings relating to an offence covered by UNTOC. The chapter explains that Article 22 has similar intentions to the provisions of the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. It also considers the article’s interpretation of its obligation and elements.
Secretariat
Authors: Schloenhardt Andreas
Published: June 2024

This chapter elaborates on the duties of a secretariat of the United Nations Convention against Transnational Organized Crime (UNTOC). It explains how the Secretary-General of the United Nations provides secretariat services to assist the Conference of the Parties. The secretariat function was given to the Secretary-General of the United Nations due to concerns over the budgetary implications of designating the CICP as the secretariat. Meanwhile, according to the subparagraphs of Article 33, the secretariat must assist States Parties upon request in providing the Conference of the Parties with information about the implementation of the Convention and other programmes. The chapter clarifies that early drafts did not contain a specific provision to establish a secretariat of the Convention.
Signature, Ratification, Acceptance, Approval and Accession
Authors: Schloenhardt Andreas
Published: June 2024

This chapter covers Article 36 of the United Nations Convention against Transnational Organized Crime (UNTOC). It explains the process by which States, and regional economic integration organizations can become Parties and bound to UNTOC. Moreover, States and regional economic integration organizations can join by ratification, acceptance, approval, and accession. The chapter cites that ratification was the standard feature of most international treaties. Thus, the signature of UNTOC must be followed by ratification, acceptance, or approval before becoming formally bound by the Convention. The chapter references the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances for its provisions on signature, ratification, and accession.
Amendment
Authors: Schloenhardt Andreas
Published: June 2024

This chapter examines the process to make amendments according to Article 39 of the United Nations Convention against Transnational Organized Crime (UNTOC). The process is based on the general rules for formal changes to international treaties, which are established from the Vienna Convention on the Law of Treaties. The chapter details the procedure to submit, circulate and adopt amendments to UNTOC while addressing the subsequent concern of the entry into force of amendments. It explains how Article 39 includes the voting rights of regional economic integration organizations when proposals for amendments are put to a vote at the Conference of the Parties (CoP). Moreover, the amendment into force will be binding if State Parties expressed consent to be bounded.
Use of Terms
Authors: McAdam Marika
Published: June 2024

This chapter assesses Article 3 of the Trafficking in Persons Protocol. Article 3(a) offers the first universally agreed definition of ‘trafficking in persons’, setting out the conduct to be criminalized in Article 5. Emerging as it did from the evolution of international law on both slavery and trafficking in women and children, the definition fuses the ‘process’ captured in legislation abolishing the slave trade, with the exploitative ‘result’ introduced by international instruments on trafficking of women and children preceding the Protocol. The resulting definition distinguishes between trafficking of adults and trafficking of children, the former comprised of three elements (an act, a means, and an exploitative purpose), and the latter only requiring two elements (an act and an exploitative purpose). Article 3(b) then clarifies that consent of the victim to the intended exploitation is irrelevant where specified ‘means’ have been used to traffic adults. Consent is always irrelevant in the case of child victims (defined in art 3(d) as persons under 18 years of age).
Scope of Application
Authors: McAdam Marika
Published: June 2024

This chapter focuses on Article 4 of the Trafficking in Persons Protocol, which determines the activities and circumstances to which the Protocol applies. The Protocol applies to the prevention, investigation, and prosecution of trafficking in persons, as well as attempts, participation as an accomplice, and organizing and directing other persons, where the offences are transnational in nature and involve an organized crime group. The focus on transnational offences involving organized criminal groups stands to reason in light of the stated purpose of the Convention and its Protocols to promote international cooperation against organized crime. Article 34(2) of UNTOC states that offences should be established in domestic law independent of transnationality or the involvement of an organized crime group. Accordingly, neither transnationality nor the involvement of organized crime need to be proven to achieve a conviction for trafficking in persons.
Repatriation of Victims of Trafficking in Persons
Authors: Lelliott Joseph
Published: June 2024

This chapter studies Article 8 of the Trafficking in Persons Protocol. The repatriation provisions in Article 8 place several obligations on both receiving States and States of return. The Article affirms the obligation of States to receive back their nationals, as well as victims of trafficking with permanent residence at the time they entered the receiving State. States of return must also verify the residence status of victims and provide documents to facilitate return. Given that return of victims can entail significant danger, including re-victimization and stigmatization, return is subject to several, albeit limited, safeguards. Article 8 further maintains, rather weakly, that any return should ‘preferably be voluntary’, thus allowing for the forced expulsion of victims of trafficking. The content of this Article must be read in light of the Protocol’s saving clause under Article 14 and, in particular, its explicit reference to the principle of non-refoulement.
Relation with the United Nations Convention against Transnational Organized Crime
Authors: Calderoni Francesco
Published: June 2024

This chapter explains Article 1 of the Smuggling of Migrants Protocol. Article 1 uses verbatim the same language as Article 1 of the Trafficking in Persons Protocol and reference is made to the commentary on that Article. Jointly with Article 37 of UNOTC, the provision ensures the coordination between the Convention and its Protocols. Overall, it provides for the application of the Convention provisions to the Protocol whenever possible and with only the necessary adaptations due to the different topics. It also ensures that offences established according to criminalization provisions of the Protocols fall within the scope of application of the Convention.
Scope of Application
Authors: McAdam Marika
Published: June 2024

This chapter examines Article 4 of the Smuggling of Migrants Protocol. The scope of application provision sets out that the Smuggling of Migrants Protocol applies to prevention, investigation, and prosecution of offences established in the Protocol, where such offences are transnational in nature and involve an organized criminal group. Its application to protection of the rights of smuggled people is not limited to those who have been smuggled transnationally by organized criminal groups. This provision firmly establishes the Protocol, alongside its sibling Protocols and parent Convention, as an instrument against transnational organized crime, not transnational irregular migration. Unlike its equivalent provision in the Trafficking in Persons Protocol, which refers to protection of ‘victims’ of that crime, the Smuggling of Migrants Protocol refers to the protection ‘of the rights of persons who have been the object of such offences’.
Information
Authors: Taylor Matthew R
Published: June 2024

This chapter explores Article 10 of the Smuggling of Migrants Protocol. The collection and sharing of accurate information on the routes, means, and methods of smuggling, as well as effective legislative and policy approaches, is key to the prevention and punishment of smuggling, as well as the protection of the rights and safety of smuggled migrants. In recognition of this, Article 10 of the Protocol encourages cooperation through information exchange on various matters related to implementation of the Protocol, consistent with domestic legislation and administrative systems. Article 10 complements a number of related obligations in UNTOC. These include Article 26 (enhanced cooperation with law enforcement authorities), Article 27 (law enforcement cooperation), Article 28 (information collection and exchange), Article 29 (training and technical assistance), and Article 30 (economic development and technical assistance).
Agreements and Arrangements
Authors: Lelliott Joseph
Published: June 2024

This article encourages States Parties to the Smuggling of Migrants Protocol to use bilateral and regional mechanisms to enhance cooperation amongst themselves in addressing the smuggling of migrants. It speaks to a significant facet of States’ efforts to prevent and suppress smuggling. Bilateral arrangements, which generally take the form of memoranda of understanding (MoUs) and other less-formal types of agreement, are used for various purposes, such as joint operations. The article explains how bilateral agreements and understandings facilitate action against smuggling of migrants and provide avenues for States to discuss implementation and enforcement of the Protocol’s provisions. It reflects an understanding that the Protocol sets out minimum standards of cooperation.
Saving Clause
Authors: Lelliott Joseph
Published: June 2024

This article subjects States Parties to the Smuggling of Migrants Protocol and obligations under other treaties they are party to, including obligations derived from custom and general principles of international law. It places particular emphasis on the rules of international humanitarian, human rights, and refugee law. It also makes special mention of the fundamental principles of non-refoulement and non-discrimination, making it clear that smuggled migrants must benefit from their entitlements at international law. The article covers the rights of smuggled migrants that are often subordinated to the goals of deterring and punishing migrant smuggling and irregular migration. It requires that measures set out in the Protocol are interpreted and applied in a way that is not discriminatory to persons on the ground that they have been smuggled.
Settlement of Disputes
Authors: Schloenhardt Andreas
Published: June 2024

This article provides several avenues for the settlement of disputes between States Parties over the interpretation or application of the Smuggling of Migrants Protocol. It encourages States Parties to settle their disputes through negotiations. If negotiations fail to produce an outcome, the dispute may be submitted to arbitration and if the arbitration did not result in an agreement within six months, it may refer the dispute to the International Court of Justice (ICJ). The article permits States Parties to opt out of arbitration and ICJ processes by making a reservation, which may later be withdrawn by notification to the Secretary-General of the United Nations. Its text is similar to the content of Article 35 of the United Nations Convention Against Transnational Organized Crime (UNTOC).
Scope of Application
Authors: Calderoni Francesco
Published: June 2024

This article defines the scope of the Firearms Protocol, which was considered one of the most hotly debated issues during the negotiations. It establishes the scope of the Protocol in relation to the prevention of the illicit manufacturing of and trafficking in firearms, their parts and components, and ammunition. It also mentions how the Protocol applies to the investigation and prosecution of offences that are transnational in nature and involve an organized criminal group. The article provides two grounds for exclusion from the scope of the Protocol. First, it excludes state-to-state transactions and second, it excludes state transfers in cases where the application of the Protocol would prejudice the right of a State Party to take action in the interest of national security consistent with the Charter of the United Nations.
Information
Authors: Taylor Matthew R
Published: June 2024

This article complements general obligations regarding cooperation, information sharing, and the development of accurate and contemporary data in respect of the criminal conduct captured by the Convention and Protocols. It contains important obligations regarding cooperation on tracing and important safeguards on how information can be shared or used by States Parties. It also obligates States Parties to share case-specific information on matters about firearms producers, dealers, importers, exporters, and carriers. The article encourages States Parties who have established regulatory frameworks regarding brokering as a means of preventing illicit firearms activities to share information about brokers and brokering. It focuses on the organized criminal groups involved in illicit firearms activity and addresses how firearms crimes are concealed.
Cooperation
Authors: Taylor Matthew R
Published: June 2024

This article requires States Parties to engage in cooperation on several levels. It details the cooperation between States Parties bilaterally, regionally, and internationally, and cooperation between States Parties and the various aspects of industry that are responsible for firearms, their parts and components, and ammunition, including manufacturers, importers, dealers, brokers, and transporters. It also complements the numerous provisions promoting cooperation, including those contained in the United Nations Convention Against Transnational Organized Crime (UNTOC). The article outlines specific requirements of cooperation in the prevention, combatting, and eradication of illicit firearms manufacturing and trafficking in firearms, their parts and components, and ammunition. It requires States Parties to identify a national focal point for the purpose of cooperating with other States Parties on matters relating to the Firearms Protocol.
Signature, Ratification, Acceptance, Approval and Accession
Authors: Schloenhardt Andreas
Published: June 2024

This article sets out the process by which States as well as regional economic integration organizations can become Parties to the Firearms Protocol and be bound by it. It specifies the time for which the Protocol is open for signature, after which States and regional economic integration organizations can join by ratification, acceptance, approval, and accession. It also highlights how the Protocol will be open for signature by regional economic integration organizations provided that at least one member State of such organization will sign. The article considers the protocol to be subject to ratification, acceptance or approval. The Instruments of ratification, acceptance or approval will be deposited with the Secretary-General of the United Nations.
Article 59 of the VCLT: Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
Authors: Fabri Hélène Ruiz , Ayman Randi
Published: June 2024

This entry focuses on Article 59 of the Vienna Convention on the Law of Treaties (VCLT). It includes the provisions on the termination or suspension of the operation of a treaty implied by the conclusion of a later treaty. Article 59, which reflects customary international law, presents the resolution of a conflict between successive treaties concluded by the same parties on the same subject matter by envisaging the termination of the earlier treaty. Similar to most other provisions of the VCLT, Article 59 is a default rule as it becomes applicable when the parties to successive treaties have not provided for a specific solution. The entry details the application of the provision in general international law and international investment law, which do not deviate from each other in any significant way.
Article 25 of the ARSIWA
Authors: Paddeu Federica , Waibel Michael
Published: June 2024

This entry concerns the defence of necessity as codified in Article 25 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). The defence of necessity permits a State to act in a manner incompatible with its international obligations, when it does so to protect an essential interest against a grave and imminent peril, and so long as it only harms an interest of lesser weight or urgency. The necessitated act must also be the ‘only way’ to safeguard the essential interest in question, and the State must not have contributed to the threat to its interest. This is a strict defence. The defence has received most attention in investment arbitration, but the decisions have been somewhat inconsistent. The entry considers where the investment decisions have deviated from the general international law standard, and also instances in which these decisions have pointed to difficulties in the drafting, and current understanding, of this defence.
Historical Development of International Refugee Law
Authors: Skran Claudena M , Easton-Calabria Evan
Published: June 2024

This chapter covers the historical development of international refugee law. It defines refugees as a distinct category of migrants deserving special attention and help. According to the 1951 Convention, refugees should not be sent back to a country of persecution. Modern refugee law first developed in response to the creation of mass refugee movements during and after the First War, and the imposition of immigration restrictions by the United States and other countries in the 1920s. The chapter elaborates on the notion of the Nansen Passport System involved with the 1933 Convention and 1938 Convention. It also notes the legal legacy of the League of Nations Era, wherein criticisms of the legal framework for refugees primarily revolve around the issues of definition, scope, and strength.
Drafting History of the 1951 Convention and the 1967 Protocol
Authors: Einarsen Terje
Published: June 2024

This chapter discusses the history of international refugee protection. It looks into the drafting history of the 1951 Convention and the 1967 Protocol, while focusing on the development and meaning of the general refugee definition of the 1951 Convention. While the 1967 Protocol is primarily concerned with the general refugee definition's universality, the 1951 Convention was the first human rights treaty to be adopted by the UN after the Second World War. Additionally, the 1951 Convention can be viewed as a third-party agreement. The chapter notes that the original UN general refugee definition clashed with more restrictive political trends in receiving Western States, which resulted in national legislation and administrative practice's hybrid refugee definitions incompatible with international refugee law.
Global Developments in Refugee Law
Authors: Einarsen Terje , Schultz Jessica
Published: June 2024

This chapter expounds on the global developments in refugee protection. Some of the developments involve human rights in UN multilateral treaties that protect refugees and shape standards of protection for refugees in their home countries. The law of international refugee protection continues to develop within and beyond the 1951 Convention. Moreover, the developments highlighted the elements that decision-makers need to assess when considering the removal of a refugee or asylum seeker to their home country or a third country. The chapter looks into the alleged grey zones in global refugee law. It cites how no other viable alternatives for the displacement challenges following the rule of non-refoulment without first securing protection in accordance with the standards of the 1951 Convention.
Preamble to the 1967 Protocol
Authors: Alleweldt Ralf
Published: June 2024

This chapter examines the Preamble to the 1967 Protocol. It starts with the Preamble's drafting history which involves the proposal to remove the time limitation in the 1951 Convention. The Colloquium introduced the drafting stage, wherein the first two Recitals did not have major changes. However, the United Nations High Commissioner for Refugees (UNHCR) revised Recital 3 and was subsequently submitted to the Executive Committee. The chapter details an analysis of the changes in the Preamble of the 1951 Convention. It mentions how the UNHCR insisted that all refugees should be treated equally regardless of being part of either the new or old refugee groups.
Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (excerpts) / Acte final de la Conférence de plénipotentiaires des Nations Unies sur le statut des réfugiés et des apatrides (extraits)
Authors: Alleweldt Ralf
Published: June 2024

This chapter looks into the final act of the United Nations Conference of Plenipotentiaries concerning the status of refugees and stateless people. It defines an international conference's final act as a legal document containing a formal summary of its proceedings as well as all the provisions agreed upon during the conference. Moreover, a final act may have legal significance and influence or clarify the interpretation of the treaty under Article 31 of the Vienna Convention on the Law of Treaties' (VCLT). The chapter discusses the short drafting history of the Final Act and the interrelation between the Final act and the other provisions. It also details the obligation of Contracting Parties to the 1951 Convention wherein travel documents should be issued to refugees lawfully staying in the country.
(Self-Employment/Professions Non-Salariées)
Authors: Edwards Alice
Published: June 2024

This chapter elaborates on the rights of refugees to engage in self-employment indicated in Article 18 of the 1951 Convention. It highlights how the right to work of refugees is directly linked to their independent economic activity and sense of dignity. Economic independence reduces the refugees' reliance on social assistance, prevents parallel unregulated commerce, and avoids the creation of an underclass of people dependent on welfare. The chapter mentions that the application of the provision applies whether refugees have individual status or prima facie status. It cites that international human rights law principles may allow the right of self-employment to be granted even to rejected asylum seekers who cannot return and asylum seekers whose asylum process lasts for an extended period.Human rights
(Rationing/Rationnement)
Authors: Lester Eve
Published: June 2024

This chapter explains the notion of welfare rights in Article 20 of the 1951 Convention. The provision obliges contracting States to integrate refugees into a State's rationing system on the same level as national citizens. Moreover, Article 20 expects the common post-conflict reality of products being in short supply and ensures that refugees are not excluded from the rationing system. The chapter highlights how the provision does not stipulate status requirements of any kind when it comes to the basic necessities of life of refugees. It also tackles the drafting history of Article 20 that involved UN agencies, which include the United Nations High Commissioner for Refugees and the World Food Programme (WFP).
(Public Education/Education Publique)
Authors: Zimmermann Andreas , Stern Rebecca Thorburn
Published: June 2024

This chapter covers the 1951 Convention's Article 22. It explains the provision's aim to grant refugees access to the contracting States' national educational systems. Moreover, Article 22 encompasses learning at all different levels of education in schools, universities, and other educational institutions. However, the provision does not address any issues related to the upbringing of children by their parents. The chapter mentions the relevancy of Article 22 when it comes to durable solutions for refugees in an effort to enable them to integrate into the host country's society. It also discusses the drafting history, declarations, and reservations of Article 22 and the instruments used prior to the 1951 Convention.
(Public Relief/Assistance Publique)
Authors: Lester Eve
Published: June 2024

This chapter tackles the purpose of Article 23 of the 1951 Convention. It focuses on a broad-based mechanism for the provision of public relief and assistance to refugees who may be regarded as lawfully staying in the contracting State's territory. The provisions ensure a measure of protection for refugees' integration and a critical safeguard against the withdrawal of assistance leading to a precipitous return that might result in refoulment. The chapter acknowledges the 1951 Convention's obligation to access public relief and assistance to refugees. It cites that the lack of the provision's controversy meant that an effective welfare framework has centrality for refugees and asylum seekers that cannot be ignored.
Article 28/Schedule
Authors: Vedsted-Hansen Jens
Published: June 2024

This chapter covers Article 28 of the 1951 Convention. It cites the importance of the travel document's issuance under the terms of international protection for the legal status of refugees. The provision's effective functioning is essentially dependent on States' organizational system for the issuance of refugees' travel documents in accordance with their undertaking. Thus, the dependence on States' administrative resources implies that many refugees may be unable to realize their right to issue travel documents and travel State borders. The chapter notes the challenges to the effective functioning of 1951 Convention Travel Documents that resulted from the developments in the technical design and format of passports. It also considers the historical development and drafting history of Article 28.
(Expulsion/Expulsion)
Authors: Davy Ulrike , Gil-Bazo María-Teresa
Published: June 2024

This chapter discusses Article 32 of the 1951 Convention which incorporates a political compromise. It elaborates on the drafting history of the provision wherein the path of integration after the Second World War was considered. Refugees are expected to opt for naturalization in their country of refuge in an effort to change their status from refugees to national citizens. Additionally, Article 32 inspired European and international human rights law and confines the State power to expel to certain grounds to allow individual arrangements of voluntary departure. The chapter mentions how the provision is deemed to be a forgotten article since refugees usually pose no threat to national security and public order.
(Territorial Application Clause/Clause d’Application Territoriale)
Authors: Gil-Bazo María-Teresa
Published: June 2024

This chapter explores Article 40 of the 1951 Convention. The provision aims to facilitate participation in the Convention by allowing States to expand its application to territories that could not accede to it on their own as they had not acquired international legal personality. The chapter elaborates on the notion of a colonial clause which triggered political controversy in the UN era. It also covers the drafting history of Article 40. The application of the provision contributed to the participation of new States as they achieved independence. Additionally, developments in international law indicate that the principle of territoriality lost its relevance.
Testimonium to the 1951 Convention/ Article XI of the 1967 Protocol
Authors: Geiß Robin , Li Yao
Published: June 2024

This chapter covers the function of Testimonium to the 1951 Convention and Article XI of the 1967 Protocol. It looks into the relevance of the 1951 Convetion's testimonium. The testimonium primarily focuses on the Convetion's authentic languages, regulation of deposition, and certified true copies being delivered to all members of the UN and non-member States. On the other hand, Article XI contains the standard procedures for regulating the deposition of a copy of the 1967 Protocol in the Secretariat of the United Nations and foreseeing the transmission of certified copies thereof by the Secretary general. The chapter mentions how both elements are not commonly explicitly indicated in modern treaties.
Principles relating to processing of personal data
Authors: der Sloot Bart van
Published: June 2024

This chapter explores Article 4 of the EU Law Enforcement Directive (LED), which offers all the quintessential data protection principles. It is the spine and backbone of the LED, from which most other provisions in the Directive find their root. The principles in Article 4 LED provide that data must be processed fairly and lawfully (fairness principles); that the data must be collected for specified purposes and that further processing must, in principle, be limited to that purpose (purpose specification and limitation principle); that only those data necessary for achieving that specific purpose may be processed (data minimisation principle); that data must be kept accurate and up to date (data quality principle); that personal data may be stored no longer than necessary for the selected purpose (storage limitation principle); and that data must be stored safely and securely (confidentiality principle). The data controller is responsible for and should be able to demonstrate compliance with these rules, also by data processors (accountability principle). Ultimately, these principles are both the oldest and most fundamental of rules contained in the LED.
Time limits for storage and review
Authors: Leiser Mark , Custers Bart
Published: June 2024

This chapter studies Article 5 of the EU Law Enforcement Directive (LED), which requires that competent authorities processing personal data for law enforcement purposes establish clear time limits for storage and review. This provision means that where a competent authority cannot specify a date for the destruction of personal data, it must determine when the competent authority will review the retention period. It is the responsibility of Member States to draft provisions in national legislation to implement time limits for storage and review. Time limits can be determined in many ways; for instance, on the various types of data subjects, the types of crimes, and the types of personal data that are processed. Since each Member State can set its time limits, these may differ by jurisdiction even when other conditions are similar or the same. The chapter then looks at interpretations regarding what each Member State considers an ‘appropriate’ time limit, how to set time limits, and what should be done in practice after the time limits come to an end.
Processing of special categories of personal data
Authors: Jasserand Catherine
Published: June 2024

This chapter details Article 10 of the EU Law Enforcement Directive (LED), which provides for the processing of special categories of personal data. Typically, sensitive data reveal intimate information about an individual’s life, personality, or origin, such as political opinions, philosophical or religious beliefs, sex life or sexual orientation, and racial or ethnic origin. However, they can also reveal information about individuals’ health that they would prefer to keep secret, or provide information about their genetic heritage or biometric characteristics. These two last categories, genetic data and biometric data, have been added to the list of sensitive data during the revision of the data protection framework. Besides the requirements of strictly necessary processing and appropriate safeguards, Article 10 LED provides three legal grounds to process sensitive data. The processing of sensitive data is allowed if authorised by law at national or EU level; to protect the vital interests of the data subject or another person; and where the data have been manifestly made public by the data subject.
Information to be made available or given to the data subject
Authors: Fuster Gloria González
Published: June 2024

This chapter describes Article 13 of the EU Law Enforcement Directive (LED). Article 13 LED details the substance of information obligations imposed on data controllers, while allowing Member States to foresee exceptions to such information obligations in certain cases and under certain conditions. Paragraphs 1 and 2 put forward information obligations, while paragraphs 3 and 4 concern permissible derogations to paragraph 2. Ultimately, Article 13 LED touches upon a particularly critical aspect of data protection in the field of law enforcement, concerning the balance between, on the one hand, the need to enable data subjects to know about the processing of data related to them, and, on the other, the need to avoid jeopardising the activities of the competent authorities that might require the covert processing of personal data. The overall objective of data protection law in this regard could be summarised as making sure that individuals have information about the processing of data about them, which is essential for them to defend themselves against data misuse, while allowing for limitations for such right to information, but only insofar as strictly necessary.
Tasks of the data protection officer
Authors: Svanberg Christian Wiese
Published: June 2024

This chapter covers Article 34 LED, which enumerates the tasks which the data protection officer (DPO) must be entrusted with. Article 34 LED clarifies the full and broad scope of the DPO’s function under the Law Enforcement Directive (LED), such as spanning informing, advising, monitoring compliance with the LED, and cooperating with and acting as the contact point of the supervisory authority. It stresses that Article 34 LED must be read jointly with Articles 32 and 33 LED, which regulate the provisions on the designation and position of the DPO. The chapter lists several Member States that have insufficiently transposed Article 34 LED in their national legislation, such as the Czech Republic, Greece and Sweden that failed to list all the tasks set out in Article 34 LED. Latvia, the Netherlands, and Portugal deviated from the provisions of the LED on the DPO consultation with the supervisory authority.
Transfers subject to appropriate safeguards
Authors: Drechsler Laura
Published: June 2024

This chapter details how Article 37 LED establishes the framework for appropriate safeguards to legitimise an international personal data transfer. All international personal data transfers under the Law Enforcement Directive (LED) have to be based on such a legal basis. Article 37(1) LED notes two alternatives for appropriate safeguards: a legally binding instrument or self-assessed appropriate safeguards. The chapter explains that the alternatives for appropriate safeguards can only be used if there is either no adequacy decision or if the adequacy decision does not cover the intended transfer due to the logical sequence of the transfer legal bases. It recounts the case of WS v. Bundesrepublik Deutschland that touched upon the issue of appropriate safeguards under the LED.
Right to lodge a complaint with a supervisory authority
Authors: Kranenborg Herke
Published: June 2024

This chapter explains the right to lodge a complaint with a supervisory authority in accordance with Article 52 of the EU Law Enforcement Directive (LED). It explains how the right to lodge a complaint with the supervisory authority is a significant addition to legal remedies a person has available to find redress against the data protection rules infringements. In comparison to judicial remedies, lodging a complaint with a supervisory authority entails less administrative burden. However, the competencies of the supervisory authority are limited. The chapter then details the complaint procedure, which is, in principle, left to the procedural autonomy of Member States, before considering the territorial competence of supervisory authorities.
Brexit
Authors: Ni Loideain Nóra
Published: June 2024

This chapter examines the impact of Brexit on data protection law. The Withdrawal Agreement, concluded in October of 2019 on the legal basis of Article 50 TEU, established the terms of the UK’s exit from the EU, including loss of EU citizenship for UK citizens and any rights related to EU membership. It also envisaged the granting of adequacy decisions under the General Data Protection Regulation (GDPR) and the EU Law Enforcement Directive (LED) subject to the UK being found to provide a level of data protection ‘essentially equivalent’ to EU law. The chapter then looks at the EU—UK Trade and Cooperation Agreement (TCA) and the Security of Information Agreement. It also looks at the EU—UK Adequacy Decisions; the EU—UK LED Adequacy Decision; the UK Data Protection Act 2018 (DPA); the EU (Withdrawal) Act 2018; the EU (Withdrawal Agreement) Act 2020; and the EU (Future Relationship) Act 2020. Finally, the chapter considers the major divergences of the relationship of the UK legal order with the EU and European Convention on Human Rights (ECHR) legal systems, and the UK’s alignment with both concerning the protection of personal data.
National implementations
Authors: Sajfert Juraj
Published: June 2024

This chapter evaluates the impact of the EU Law Enforcement Directive (LED) on national legislation. The LED is not a complete harmonisation directive. Article 1(2) LED allows Member States to introduce higher data protection standards from the ones required by the Directive. This creates a bigger margin for manoeuvre of national legislators, compared to a complete harmonisation directive. Ultimately, the LED was addressed to all EU Member States, with Ireland and UK having a partial opt-out and Denmark an option to transpose. To the question of how to transpose the Directive, Member States found disparate answers. They were facing two basic dilemmas: firstly, whether to transpose the LED in a separate legislative act, or together with the national implementation of the General Data Protection Regulation (GDPR); and secondly, whether to transpose the LED in a ‘centralised’ data protection law only, or distribute the transposition provisions across sectoral laws. While the transposition of the LED in national laws of Member States and Schengen countries was completed in 2021, there are still many questions and concerns around the quality, conformity, and harmonisation of those laws.
National Regulation of International Human Rights Responsibilities of Business
Authors: Robert McCorquodale
Published: June 2024

This chapter considers the national regulation of international human rights responsibilities of business. The chapter examines the change over time in states’ responses to regulation in this field, especially since the adoption of the United Nations Guiding Principles on Business and Human Rights 2011 (UNGPs). It explains that the pieces of legislation, which vary widely in their scope and enforcement, are all subject to criticisms in terms of their alignment with the UNGPs.
The State
Authors: Wilmshurst* Elizabeth
Published: June 2024

This chapter explores the concept of the State as a legal person as per international law. Even though control of territory is essential to the concept of the State, respect for territorial sovereignty is an essential foundation of international relations. The chapter then explains recognition as the process by which an entity becomes or is accepted as a legal person in international law enjoying relations as a State with existing States. Moreover, one of the criteria for statehood is the existence and recognition of a government with effective control over most of the territory of the State. The chapter elaborates on the powers of the State as a legal person by considering the notions of internal sovereignty, external sovereignty, and the principle of equality.
Diplomatic Communication
Authors: Roberts Ivor
Published: June 2024

This chapter examines the importance of diplomatic communication. It starts with the history and modern practice of language before detailing the forms and means of official communication, such as notes verbales, collective notes, despatches, speaking notes, non-paper, démarche, and other more informal means of communication like fax and emails. Meanwhile, megaphone diplomacy is often the product of domestic political needs as diplomats attempt to repair the damage done. The rejection of diplomatic communications often involves objectionable language of the document or gross interference with internal affairs. The chapter also elaborates the format and purpose of correspondences between sovereigns and heads of state.
Human Rights and Diplomacy
Authors: Clooney Amal
Published: June 2024

This chapter covers the interrelation between human rights and diplomacy. Following the shifts of the Second World War's atrocities, diplomats are regularly involved in speaking out on behalf of their State about human rights abuses, regardless of whether the abuses were committed against the State’s own citizens. The chapter enumerates the role of a diplomat in upholding individual human rights. Moreover, States’ international human rights obligations are derived from both treaties and customary international law. The chapter then looks into the challenges to human rights protection, such as obligations and the lack of power to enforce decisions and monitor compliance.
Non-Governmental Organizations (NGOS) and Violent Non-State Actors (VNSAS)
Authors: Roberts Ivor
Published: June 2024

This chapter focuses on non-governmental organizations (NGOs) and violent non-state actors. One of the key manifestations of civil society is the flourishing of organizations outside the state sector, such as NGOs that come in many shapes and sizes. Moreover, NGOs monitor, scrutinize and criticize the performance of government and international or national organizations, which means they are active in the diplomatic field. The chapter mentions how communications brought humanitarian crises directly to the homes of the public, and mobilised rapid support for action by the government and by public subscription. It also highlights the notable work of the International Committee of the Red Cross.
‘Amp Up and Amplify: Defy!’
Authors: Methymaki Eleni , Tzanakopoulos Antonios
Published: June 2024

The chapter discusses the engagement of domestic courts with international sanctions. After clarifying the use of the term ‘international sanctions’, the chapter discusses the engagement of domestic courts with international sanctions in cases that show alignment with international law. Such alignment bears marks of both avoidance and contestation. The chapter then turns to cases where domestic courts have engaged in contestation of international legal norms while dealing with international sanctions. Here again, however, contestation can be presented also as (consubstantial) alignment, at least in part. The chapter highlights that the combative stance of domestic courts with regard to international sanctions has had at least some effect on the structure and operation of UN Security Council sanctions regimes. Even if that effect is modest, it underlines how a pattern of alignment-cum-contestation and of contestation-cum-alignment in domestic court practice can exert pressure to implement certain changes at the international level.
North American Trade
Authors: Robert Brookfield , Lori Di Pierdomenico
Published: June 2024

On 16 August 2017, Canada, the United States, and Mexico officially launched the ‘re-negotiation’ of the NAFTA, which up until that point had presided over nearly a quarter century of North American trade. US President Trump made it clear that unless drastic changes were made to it, the US would withdraw from the NAFTA. In some respects, it had become clear that an agreement first implemented during the pre-digitalized age, and well-before issues like environment and labour standards were comprehensively addressed within FTAs, was badly in need of changes and modernization. Given its dissatisfaction with the agreement and other issues, the United States was engaging in the politics of breakdown in the rule of law to force change. Once the dust had settled and the new agreement in place, however, it was remarkable in that despite the ringing criticisms, it was clear the NAFTA was mostly left in place, but with a few key improvements, updates, and additions to signal a revised commitment of the Parties to North American trade.
Trade in Agriculture
Authors: Fiona Smith
Published: June 2024

This chapter reflects on what effects regional trade agreements have on international agricultural trade regulation. It questions the established view that regional trade agreements indicate the further fragmentation of international trade law, and instead proposes a new theoretical perspective grounded on the notion of trade rules’ stability. Focusing on stability reveals new perspectives about how international agricultural trade rules function and why formal regulation seems unable to resolve ongoing political disagreements about the relationship between trade and non-trade values at the WTO. Questions about rules’ stability are not unique to international agricultural trade law and can be extended to reveal new challenges in all areas of international economic law.